T 

Hoi 


THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


THE  POWER  OF  SPECIAL  TAXATION 


A  TREATISE  ON 


THE  POWEK  OF  SPECIAL  TAXATION 


A  CRITICAL    ANALYSIS    OF    SPECIAL    TAXES    FOR    LOCAL 
AND   PUBLIC  IMPROVEMENTS,    CONSIDERED  WITH 
REFERENCE  TO  THE  CONSTITUTION,  STATE 
AND  FEDERAL,  AND  THE  RESTRIC- 
TIONS THEREIN  CONTAINED 


BY  HENRY  N.  ESS 

of  the  Missouri  Bar 


KANSAS  CITY,  MISSOURI. 

PIPES-REED  BOOK  CO. 

1907. 


Copyright  1907 
BY   HENRY   N.    ESS. 


T 


Press  of 

E.  W.  Stephens  Publishing  Co. 

Columbia,  Mo. 


TO 

JOHN  H.  LATHROP, 

SOMETIME    PRESIDENT    OF    THE    UNIVERSITY    OF    MISSOURI, 

MY  NOBLE  AND  DISINTERESTED  PRECEPTOR; 

FRIEND  AND  COUNSELOR  IN   EARLY   LIFE   WHILE 

I   WAS   A   POOR   COUNTRY   BOY, 

IN  MEMORY  OF  THE  PRICELESS  SERVICES  HE  RENDERED 

ME  AND  OTHERS  IN  THE  PERFECT  PERFORMANCE 

OF  HIS  DUTY  AS  TEACHER, 

FRIEND  AND  COUNSELOR  IN  MY  LIFE  WORK, 

I  DEDICATE  THIS  BOOK. 


(iii) 


729517 


TABLE  OF  CONTENTS. 

CHAPTER  1. — Restraints  Implied  from  the  Nature  of  Free  Gov- 
ernment         1 

CHAPTER  2. — Local   Taxation   in  Connection  with  the  Exer- 
cise of  the  Power  of  Eminent  Domain 18 

CHAPTER  3.— Personal  Liability  for  a  Local  Tax 53 

CHAPTER  4. — Effect  of  the  Decision  in  City  of  St.  Louis  to 

use  of  Seibert  v.  Allen,  53  Mo.  44   62 

CHAPTER  5.— Theories  of  Taxation 84 

CHAPTER  6. — Power  of  Taxation  a  Part  of  Sovereignty 131 

CHAPTER  7. — Power  of  Government  as  to  Property,  Benefits 

and  Damages  155 

CHAPTER  8.— Changes  in  Judicial  Rulings   169 

CHAPTER  9. — Our  Constitutions  in  the  Light  of  the  History  of 

the  States 226 

CHAPTER  10. — Some  Comparisons   250 

CHAPTER  11.— Further  Changes  260 

CHAPTER  12. — Results— Inconsistencies    277 

CHAPTER  13. — Existing  State  of  Constitutional  Law  and  Rem- 
edies Proposed  291 

CHAPTER  14. — Reasons  which  Prevent  Judicial  Interference    315 

CHAPTER  15.— Conclusion 359 

Table  of  Cases  377 

Index 385 


(iv) 


PREFACE. 

There  are  very  few  persons  in  the  United  States, 
who  understand  and  fully  appreciate  the  fact  that  the 
power  of  local  taxation  of  real  estate  in  our  cities,towns 
and  villages  is  absolutely  without  limit  except  the 
whole  value  of  the  land  taxed  and  the  whole  value  of 
all  houses  and  other  improvements  thereon. 

In  its  origin  on  the  original  theory  on  which  it  was 
founded,  the  money  raised  by  local  taxation  was  applied 
to  the  benefit  of  the  person  and  property  taxed.  The 
benefit  to  the  person  and  property  taxed  was  equal  to 
or  greater  than  the  amount  of  the  tax.  This  is  given  as 
the  sole  reason  for  compelling  the  owner  of  real  estate 
to  pay  for  work  and  material  which  he  did  not  want  and 
for  whch  he  made  no  contract  or  agreement. 

Before  the  citizen  can  be  compelled  to  give  up  his 
property  in  the  interest  of  the  public  good  under  any 
legislative  act,  the  evidence  should  leave  no  reasonable 
doubt  as  to  the  fact,  the  character  and  amount  of  bene- 
fit. The  evidence  should  be  the  same  as  that  required 
to  prove  a  resulting  trust.  The  unlimited  power  of  the 
English  Parliament  should  not  have  been  given  to  our 
city  councils.  But  our  city  governments  in  the  United 
States  have  and  exercise  greater  power.  No  Parlia- 
ment in  England  from  Eunnymede  to  the  present  hour 
has  ever  yet  undertaken  to  make  an  actual  damage  a 
real  benefit. 

(V) 


vi  Preface. 

Our  city  councils  should  not  be  compelled  to  serve 
two  masters  having  opposing  interests,  one  master  be- 
ing the  abutting  property-owner  and  the  other,  the  bal- 
ance of  the  public.  Our  common  councils  are  not  judic- 
ial tribunals  to  hear  and  weigh  impartially  the  evidence 
offered  and  render  a  judicial  decision  on  notice  and 
hearing.  No  man  can  serve  two  masters.  This  prin- 
ciple is  deeply  imbedded  in  human  nature.  It  was  the 
divine  judgment  of  Jesus  Christ,  enunciated  more  than 
eighteen  centuries  ago.  It  is  a  source  of  deepest  re- 
gret that  our  American  courts  should  dare  to  reverse 
this  judgment  of  Jesus  Christ.  His  decision  has  been 
effectually  overruled  by  all  our  American  courts.  We 
no  longer  make  i^arks,  boulevards,  pavements ;  we  now 
make  money.  The  park,  the  boulevard,  the  streets,  are 
the  mere  by-products  of  our  moneymaking. 

Grading  a  street  may  be  a  benefit  or  a  damage  to 
abutting  property.  The  tax  is  levied  and  the  tax-bills 
issued  after  the  work  is  done.  We  do  not  grade  streets 
under  the  tax-power.  If  the  grading  cause  a  damage, 
that  damage  is  done  before  the  levy  of  the  tax  or  the 
issue  of  the  tax-bills. 

The  tax-power  can  not  make  that  a  benefit  which 
was  and  is  a  damage.  The  street  is  just  as  good  to 
travel  on  without  the  tax-bill  as  with  it.  The  tax-bill 
ordinance  does  not  make  the  street  any  better  to  travel 
on. 

Keating  v.  Skiles,  72  Mo.  97  (A.  D.  1880) ;  Keating 
V.  City  of  Kansas,  84  Mo.  415  (A.  D.  1884) ;  Keith  v. 
Bingham,  100  Mo.  300  (A.  D.  1889) ;  Smith  v.  Kansas 
City,  128  Mo.  23  (A.  D.  1894) ;  and  McQuiddy  v.  Smith, 
67  Mo.  App.  205  (A.  D.  1896),  were  all  grading  cases. 


Preface.  vii 

Keating  graded  Bell  street  to  the  benefit  of  adjoin- 
ing lots  and  of  the  City  of  Kansas  and  he  failed  to  re- 
cover from  the  lotowners  and  from  the  city.  While  in 
Keith  V.  Bingham,  100  Mo.  300,  the  contractor's  as- 
signee recovered  on  the  tax-bills  notwithstanding  the 
fact  that  the  grading  damaged  the  lot  and  just  com- 
pensation for  such  damages  was  not  paid.  Where  the 
grading  was  a  benefit  the  contractor  could  not  recover ; 
where  it  was  a  damage  he  could. 

In  Smith  v.  Kansas  City,  128  Mo.  23,  Mrs.  Smith 
recovered  $2,750  against  Kansas  City  because  the  grad- 
ing damaged  her  property  that  much,  while  in  McQuid- 
dy  V.  Smith,  67  Mo.  App.  205,  the  contractor  recovered 
against  Mrs.  Smith  $300  for  the  same  grading,  the 
grading  being  a  benefit  in  the  tax-bill  suit. 

The  graded  street  may  be  better  or  worse  to 
travel  on  than  the  ungraded  street,  but  the  tax-bill  does 
not  make  it  any  better  or  any  worse  to  travel  on  either 
to  the  public  or  the  abutting  property-owner. 

The  American  constitutions  (state  and  national) 
have  imposed  certain  restrictions  on  the  powers  of  the 
government.  These  restrictions  apply  to  all  branches 
of  the  government,  executive,  legislative  and  judicial. 

Private  property  shall  not  be  taken  or  damaged  for 
public  use  without  just  compensation,  and  such  compen- 
sation shall  be  ascertained  by  court  and  commission- 
ers, or  by  court  and  jury,  and  this  just  compensation 
shall  be  paid  in  advance. 

Of  course  this  is  not  a  restriction  on  the  tax-power 
eo  nomine.  Certain  things  are  prohibited  from  being 
done.  The  things  are  prohibited,  not  the  names.  The 
state  legislatures  do   the   things    they   are   prohibited 


viii  Preface. 

from  doing  and  then  tax  the  injured  persons  and  prop- 
erty to  pay  for  doing  the  prohibited  things.  This  is 
done  in  the  interest  of  the  public  and  against  the  per- 
son and  property  designed  to  be  protected.  May  the 
state  legislatures  authorize  cities,  towns  and  villages  to 
do  the  things  the  state  constitutions  prohibit  them  from 
doing  and  then  tax  the  injured  person  and  property 
(the  very  person  and  property  designed  to  be  protected 
by  the  restriction)  for  doing  such  injury? 

Now,  all  such  constitutional  restrictions  have 
ceased  practically  to  be  such  restrictions  or  prohibi- 
tions, and  have  become  provisions  authorizing  state 
legislatures  to  enact  laws  enforcing  the  prohibited 
things  and  then  authorizing  local  taxes  to  pay  for  doing 
the  prohibited  things.  Such  tax  laws  are  constitution- 
ally valid  notwithstanding  the  acts  done  are  in  plain 
terms  prohibited.  On  the  same  principle,  legislatures 
may  enact  laws  for  doing  all  other  prohibited  things  and 
then  enact  laws  for  local  taxes  (or  general  taxes)  to  pay 
for  doing  such  prohibited  things;  such  local  taxes  are 
held  constitutionally  valid  notwithstanding  the  acts 
done  (for  which  such  taxes  are  levied)  are  prohibited  in 
plain  terms.  Here  is  a  distinct  prohibition.  This  is 
quite  different  from  a  mere  want  of  authority.  If  the 
Legislature  may  do  one  prohibited  thing  and  tax  locally 
the  injured  i)erson  and  property  designed  to  be  pro- 
tected, then  the  Legislature  may  do  all  the  acts  prohib- 
ited and  tax  the  injured  person  and  property  to  pay  for 
them. 

In  the  American  states  all  constitutional  barriers 
have  been  swept  away,  as  much  now  as  in  the  days  of 
the  French  Revolution,  when  the  Dantons,  the  Robe- 


Preface.  ix 

spierres  and  the  Marats  were  in  the  zenith  of  their 
l>ower.  Tax-bills  are  now  in  the  same  condition  as  mu- 
nicipal bonds.  Although  the  bond  is  a  contract,  the 
tax-bill  is  not;  but  it  is  founded  on  contract— the  con- 
tract to  do  public  work. 

The  public  work  contracted  to  be  done  may  be  ruin- 
ous to  the  property  taxed  and  to  the  property-owner, 
yet  the  tax-bills  issued  for  doing  this  injury  are  sacred 
constitutional  obligations  and  valid  to  all  intents  and 
purposes  in  the  hands  of  the  original  wrongdoer.  Our 
state  constitutions  rival  the  constitution  of  Hell  and  far 
exceed  it  in  iniquity.  I  do  not  believe  that  the  framers 
of  our  state  constitutions  ever  intended  that  the  prop- 
erty-owner should  be  taxed  to  pay  for  damaging  his 
own  property. 

In  the  establishment  of  this  judicial  iniquity,  all 
sorts  of  thrusts,  insinuations  and  innuendoes  are  in- 
dulged against  those  who  oppose  or  even  question  the 
enforcement  of  such  unrighteous  laws  and  ordinances. 
The  vilest  epithets  known  to  the  language  are  applied 
to  them.  Those  who  favor  the  iniquitous  system  are 
enterprising;  they  are  public  spirited;  they  aim  to  ac- 
complish the  public  good.  They  deify  the  public  good. 
That  which  they  take  to  be  good  is  really  bad.  The 
French  Rovolutionists  deified  a  strumpet  for  the  God- 
dess of  Liberty.  We  have  followed  their  example.  The 
Devil  always  makes  a  good  argument  (i.  e.,  apparently 
good).  But  in  the  American  tax-bill  the  Devil  has 
fairly  outdone  himself. 

The  courts  have  authorized  and  sanctioned  combi- 
nations of  the  few,  the  powerful  in  finance  and  intellect 
against  the  weak  deserving  protection  against  those  un- 
suspecting. 


X  Peeface. 

Veiy  many  times  the  suspicions  of  the  multitude 
are  justifiable:  That  public  office  is  a  private  snap; 
that  it  confers  on  the  officeholder  the  right  to  sell  his 
vote  to  the  highest  bidder  for  cash  in  advance. 

"We  must  return  the  Scotch  verdict:  '^Guilty,  but 
not  proven/'     Quo  Vadimus? 

In  the  rapids  of  Niagara  approaching  the  Falls  1 


THE  LAW  OF  LOCAL  TAXATION. 


THE  LAW  OF  LOCAL  TAXATION. 

CHAPTER  1. 

RESTRAINTS  IMPLIED  FROM  THE  NATURE  OF  FREE 
GOVERNMENT. 

On  the  subject  of  local  taxation,  or  assessments  for 
local  public  improvements,  we  have  varied  statutes  in 
every  state,  varied  and  contradictory,  and  inconsistent 
decisions  thereon.  The  Bill  of  Rights  in  our  state  con- 
stitutions is  substantially  the  same.  We  here  consider 
local  taxation  with  reference  to  only  one  provision  of 
our  Bill  of  Rights  and  that  is : 

' '  Private  property  sliall  not  be  taken  or  applied  to 
public  use  without  just  compensation"  (with  the  addi- 
tions made  to  it  in  the  Missouri  Constitution  of  1875). 

I  shall  not  call  the  subject-matter  ''eminent  do- 
main," or  ''a  condemnation  proceeding"  for  that  would 
in  the  writer's  opinion  narrow  the  meaning  intended 
by  the  framers  of  the  Constitution.  The  f ramers  of  the 
Constitution  evidently  intended  to  prohibit  a  thing  and 
not  a  name  only.  I  omit  the  other  (perhaps  broader) 
provision,  ''No  person  shall  be  deprived  of  life,  libei'ty 
or  property  without  due  process  of  law. ' '  No  substan- 
tial verbal  change  has  been  made  in  the  first  provision 
and  our  reasons  or  suggestions  will  be  confined  mainly, 
almost  entirely,  to  that  provision.  The  language  of 
the  other  provision  has  been  changed.  It  was  formerly 
thus: 

"Nor  shall  the  accuser]  he  deprived  of  life,  liberty 
or  property  without  due  process  of  law,"  seemingly 
aimed  at  prosecutions  for  crime,  and  seeming  to  indi- 

(1) 


2  Law  of  Local  Taxation.  [Chap.  1 

(•ate  that  if  the  person  was  not  the  accused  he  was  not 
entitled  to  life,  liberty  or  property.  Hence,  seemingly 
an  honest  man  was  not  entitled  to  life,  liberty  or  prop- 
erty, especially  if  we  apply  the  maxim,  "Expressio 
unius,  exciusio  alt ei  ins."  In  many  of  the  decisions, 
the  constitutional  validity  of  various  statutes  is  dis- 
cussed without  clearly  and  distinctly  '^  putting  the  fin- 
ger" on  the  particular  provision  of  the  Constitution 
with  which  the  statute  may  be  said  to  be  in  conflict,  and 
without  showing  clearly  and  distinctly  how  or  why 
there  is  a  conflict.  In  some  cases  statutes  are  alleged 
to  be  in  contravention  of  one  section  or  clause  of  the 
Constitution,  or  Bill  of  Rights,  and  the  decision  is  that 
the  statute  is  not  in  conflict  with  that  clause  of  the  Con- 
stitution or  Bill  of  Eights.  When  the  same  statute  is 
alleged  to  be  in  conflict  with  some  other  section  or 
clause  of  the  Constitution  or  Bill  of  Rights,  then  the 
former  decision  is  held  binding  and  conclusive  although 
the  point  was  not  raised  or  discussed  by  court  or  coun- 
sel. It  seems  in  many  cases  to  be  considered  that  if 
the  constitutional  validity  of  a  statute  is  called  in  ques- 
tion on  one  ground,  and  it  is  decided  that  the  statute  is 
valid  on  that  ground  and  as  against  such  objection,  then 
the  decision  is  construed  as  settling  its  constitutional- 
ity on  all  possible  grounds.  In  this  way  these  whole- 
some provisions  of  our  Bill  of  Rights  have  been  nar- 
rowed by  judicial  decision  until  now  it  may  be  fairly 
said  that  in  local  taxation  the  legislative  power  is  not 
governed  by  the  Constitution  or  the  Bill  of  Rights. 

In  Wells  V.  Weston,  22  Mo.  384  (decided  in  1856, 
under  tax  levied  in  1851),  an  act  of  the  state  Legisla- 
ture purported  to  authorize  the  city  authorities  of  Wes- 
ton to  levy  a  tax  of  one-half  of  one  per  cent  on  all  the 
real  estate  without  the  corporate  limits  of  the  city  and 
within  one  half  mile  of  sucli  limits.  The  state  Consti- 
tution of  Missouri  then  provided  that  all  property  sub- 
ject to  taxation  should  be  taxed  in  proportion  to  its 


Chap.  1]  Restkaints  Implied.  3 

value.  That  Constitution  did  not  confer  the  power  of 
taxation  on  the  Legislature  in  direct  tenns.  It  did  not 
in  terms  then  restrict  taxation  otherwise  than  by  pro- 
viding that  all  ])roperty  subject  to  taxation  should  be 
taxed  in  proportion  to  its  value.  The  Bill  of  Rights  of 
that  Constitution  provided  that  private  property 
should  not  be  taken  or  applied  to  public  use  without 
just  compensation. 

A  tax  of  one-half  of  one  per  cent  was  levied  on  the 
lands  of  Mr.  Wells  lying  outside  of  the  city  limits,  but 
within  one-half  mile  of  such  limits.  The  lands  were  ad- 
vertised for  sale  regularly  according  to  statutes  and 
ordinances.  Mr.  AVells  applied  for  and  obtained  a  tem- 
porally injunction  restraining  the  sale  on  the  ground  of 
the  constitutional  invalidity  of  the  tax  and  that  the  sale 
would  cast  a  cloud  on  the  title  to  his  land.  The  con- 
stitutional invalidity  of  the  statute  arose  on  a  demurrer 
to  the  petition.  The  demurrer  to  the  petition  ivas  s^(^- 
iained  in  the  court  belou-,  but  the  judgment  teas  re- 
versed above. 

Judge  Leonard  in  rendering  the  opinion  of  the 
court  said: 

''The  question  that  has  been  argued  before  us 
upon  this  record,  and  the  only  one  that  we  have  consid- 
ered is,  whether  it  is  competent  for  the  Legislature  to 
confer  upon  the  city  of  Weston  authority  to  tax,  for  lo- 
cal purposes  land,  lying  beyond  the  corporate  limits. 
We  have  considered  the  matter  with  all  the  care  that  it 
is  our  duty  to  do,  when  we  are  required  to  decide  upon 
the  constitutional  validity  of  a  legislative  act,  but  clear- 
ly of  opinion  that  this  provision  of  the  charter  violates 
the  constitutional  rights  of  the  citizen,  which  we  are 
to  protect,  we  are  constrained  to  pronounce  accord- 
ingly. The  judgment  upon  the  demurrer  will  there- 
fore be  reversed  and  the  cause  remanded. 

"It  is  tnie  the  Legislature  possesses  the  uncon- 
trolled power  of  taxation,  with    the    single   limitation 


4  L-^w  OF  Local  Taxation.  [Chap.  1 

that  'All  property  subject  to  taxation  shall  be  taxed  iu 
proportion  to  its  value, '  and  this  authority  to  tax,  they 
may  undoubtedly  delegate  to  subordinate  agencies, 
such  as  county  tribunals  and  municipal  corporations, 
to  be  assessed  and  applied  locally ;  but  here  the  attempt 
is  to  authorize  a  municipal  corporation— charged  with 
the  subordinate  government  of  persons  and  things 
within  its  limits,  and  having,  as  incident  to  this,  the 
power  to  tax  these  persons  and  things  for  local  pur- 
poses—to impose  a  tax  upon  the  lands  lying  beyond  its 
limits;  or,  in  other  words,  arbitrarily,  under  the  mask 
of  a  tax,  to  take  annually  from  those  who  are  witJiout 
its  jurisdiction  a  certain  portion  of  their  property  lying 
ivithin  a  half  mile  of  the  corporate  limits;  ivhich  ive 
think  can  not  he  done." 

The  tax  was  here  one-half  of  one  per  cent.  There 
was  here  no  infringement  of  the  rule  of  constitutional 
law  requiring  all  property  subject  to  taxation  to  be 
taxed  in  proportion  to  its  value.  The  charter  is  uncon- 
stitutional. Why!  Some  other  provision  of  the  Con- 
stitution has  been  infringed.  Notwithstanding  Wells' 
land  was  taxed  'in  proportion  to  its  value,'  in  precise 
accordance  with  this  constitutional  provision  still  this 
provision  of  the  charter  violates  the  constitutional 
rights  of  the  citizen. 

"As  the  very  purpose  of  instituting  government  is 
the  protection  of  the  citizen  in  his  person  and  property, 
power  to  violate  these  rights  would  seem  to  be  quite  be- 
yond the  lawful  authority  of  any  government ;  and  cer- 
tainly the  legislative  department  of  this  government 
cannot  arbitrarily  take  the  property  of  one  citizen  and 
give  it  to  another,  and,  of  course  can  not  authorize  oth- 
ers to  do  so.  This  is  not  within  the  power  of  any  prop- 
erly constituted  government,  and  our  American  gov- 
ernments are  expressly  prohibited  from  taking  private 
property,  even  for  public  use,  without  just  compensa- 
tion to  the  owner.    To  justify  even  such  an  invasion  of 


Chaj).  1]  Restraints  Implied.  5 

private  property,  it  must  be  shown  that  the  use  for 
which  it  is  about  to  be  taken  is  a  public  one,  and  that 
the  compensation  to  be  given  has  been  sufficiently  se- 
cured to  the  party;  and  certainly  from  the  very  pur- 
pose of  all  just  governments,  and  this  express  provi- 
sion we  may  safely  imply  a  constitutional  prohibition 
aiiainst  the  arbitrary  taking  of  private  property  for 
private  use  without  any  compensation.  This,  however, 
seems  to  be  substantially  the  authority  here  given: 
those  who  live  in  the  toivn  are  authorized  to  exact  an- 
nually from  those  who  live  adjacent  to  it,  a  certain 
portion  of  their  property,  to  he  applied,  under  their  di- 
rection, to  their  own  local  purposes.  And  this  we  think 
can  not  be  done  under  our  government,  which  was  in- 
stituted exclusively  for  the  protection  of  indi\'idual 
rights,  and  where  private  property  is  expressly  pro- 
tected from  any  appropriation  of  it,  even  to  public  use, 
without  full  compensation  to  the  owner."  And  now  by 
express  constitutional  provision  in  all  the  States,  with 
few  exceptions,  private  property  can  neither  be  taken 
nor  damaged  for  public  use  without  ''just  compensa- 
tion" paid  in  advance.  The  citizen  is  not  now  required 
or  obliged  to  enter  into  an  unequal  contest  against  a 
powerful  adversary  being  either  the  State  or  some  cor- 
poration having  all  the  powers  of  the  state  govern- 
ment. 

This  municipal  tax  law  is  judicially  determined  to 
be  an  authority  "To  take  annually  from  those  who  are 
without  its  jurisdiction  a  certain  portion  of  their  pro|> 
erty  lying  within  a  half  mile  of  the  corporate  limits, 
which  we  think  can  not  be  done. ' ' 

The  reader  will  note  the  difference  between  taxa- 
tion by  the  State  on  the  one  hand  and  taxation  by  a 
city,  town,  village  or  county  or  other  corporation  exer- 
cising a  delegated  authority,  on  the  other  hand.  The 
state  legislature  can  tax  in  all  cases  not  prohibited  by 
the  Constitution  of  the  State  or  the    Constitution    or 


6  Law  of  Local  Taxation.  [Chap.  1 

laws  of  the  United  States;  the  county,  city,  town,  vil- 
lage or  other  municipal  corporations  can  tax  only  in  the 
cases  authorized.  When  the  State  taxes,  the  question 
is,  "Is  the  authority  to  tax  proluhitedf  When  the 
county,  city,  town,  village,  or  other  municipal  author- 
ity taxes,  the  question  is  ''Is  the  authority  given?" 

In  this  case  the  court  recognized  the  validity  of  a 
delegation  (to  the  city  of  Weston)  of  this  taxing  power 
notwithstanding  the  general  rule  of  constitutional  law 
that  legislative  power  can  not  be  delegated.  "Xo  in- 
stance it  is  believed,  can  be  found  where  these  corpora- 
tions have  been  clothed  with  power  to  tax  others  not 
within  their  local  jurisdiction  for  their  own  local  pur- 
poses and  if  the  Legislature  possess  the  power  now 
claimed,  over  private  property,  they  ought  to  exercise 
it  themselves  and  not  delegate  it  to  those  whose  interest 
it  is  to  abuse  it. ' ' 

This  Weston  tax  law  talies  the  property  of  one 
man  and  gives  it  to  another.  While  this  delegated  pow- 
er in  the  Weston  charter  is  invalid  as  a  delegated  au- 
thority to  take  the  property  of  one  man  and  give  it  to 
another  I  do  not  understand  the  case  to  hold  that  the 
Legislature  of  the  State  may  take  the  property  of  one 
man  and  give  it  to  another.  The  Weston  taxation  law 
took  private  property  of  Mr.  Wells  and  vested  it  in  a 
number  of  citizens.  If  that  act  of  taxation  had  been 
done  directly  by  the  State  it  would  still  have  been  a  tak- 
ing of  the  citizen's  private  property  for  private  use. 

The  taxing  ordinance  of  Weston  and  the  sale  there- 
under threatened  and  enjoined  will  cast  a  cloud  on  Mr, 
Wells'  title  to  his  land.  The  threatened  sale  would  be 
invalid  because  the  ordinance  is  invalid ;  the  ordinance 
is  in  form  authorized  by  the  town  charter  of  Weston 
and  if  the  authority  to  tax  is  valid  the  sale  and  deed  will 
convey  his  title  to  the  land,  i.  e.,  it  takes  Mr.  Wells' 
land  and  gives  it  to  the  people  of  Weston.  A  direct 
enactment  bv  the  Lesrislature  would  be  no  better.    The 


Chap.  1]  Restraints  Implied.  7 

authority  is  to  take  private  property  for  private  use. 
The  Legislature  can  not  do  this  directly.  It  can  not 
authorize  \\'eston  to  do  so.  Hence  this  charter  of  Wes- 
ton is  on  this  point  invalid ;  it  contravenes  a  provision 
(implied)  of  the  Constitution  that  private  property 
shall  not  be  taken  from  one  man  and  given  to  another 
for  private  use.  This  decision  was  rendered  in  1856. 
While  under  this  tax  law  ^Ir.  AVeils'  land  could  have 
been  taken  and  sold  and  the  title  i)assed  to  others  but 
for  the  injunction,  yet  this  is  not  a  condemnation  pro- 
ceeding. It  w^as  not  proposed  to  condemn  Mr.  Wells' 
land  to  public  use.  It  is  in  no  sense  an  exercise  of  the 
right  of  ''eminent  domain."  The  taxing  was  a  taking  to 
the  extent  of  the  tax.  If  the  Legislature  may  tax  one- 
half  of  one  i3er  cent  it  may  tax  one  hundred  per  cent  in 
the  absence  of  some  constitutional  limitation  as  to 
rates.  This  taxation  law  would  have  been  void  if  we 
had  never  adopted  the  constitutional  provision  that 
"All  property  subject  to  taxation  shall  be  taxed  in  pro- 
portion to  its  value." 

The  City  of  St.  Charles  v.  Nolle,  51  Mo.  122,  de- 
cided at  October  term,  1872,  is  a  case  of  taking  personal 
property  under  the  guise  of  taxation. 

The  city  of  St.  Charles,  Missouri,  had  power  by 
her  charter  to  tax  wagons  used  to  carry  property  from 
places  without  to  places  within  the  city,  and  from 
places  within  the  city  to  other  places  within  the  city. 
The  ordinance  deemed  pro|)er  to  carry  out  this  power 
was  passed.  Fritz  Nolle,  not  a  resident  of  the  city  of 
St.  Charles,  but  li\ang  on  a  fann  five  miles  from  the 
city,  was  employed  by  a  lumber  finn  in  the  city  of  St. 
Charles  to  haul  lumber  for  the  firm  from  the  river  land- 
ing seven  miles  below  St.  Charles  to  the  finn's  luml>er 
yard  in  St.  Charles.  Mr.  Nolle  had  no  license  and  he 
was  prosecuted  for  violation  of  the  city  ordinance.  The 
court  in  rendering  the  opinion  (51  Mo.  122,  loc.  cit.  124) 
say: 

"Besides,  if  the  Legislature  had  given  the  power 


8  L.\w  OF  Local  Taxation.  [1  Chap. 

in  so  many  words,  in  my  judgment,  such  legislation 
"would  have  been  void  as  going  beyond  the  limitation  of 
legislative  power.  Although  there  may  not  be  any  ex- 
press limitation  on  legislative  power  in  our  state  Con- 
stitution, in  many  instances  the  very  nature  of  our 
state  governments  and  the  pur|30ses  for  which  they 
were  created,  must  form  a  barrier  to  legislation  which 
deprives  one  portion  of  the  community  of  its  property 
for  the  benefit  of  others. 

''The  proper  construction  of  the  Constitution  in 
regard  to  taxing  [evidently  a  misprint  for  ''taking"] 
private  property  for  public  use,  is  that  it  can  be  taken 
only  for  public  use  and  not  for  private  use  at  all,  and 
when  taken  for  the  public  use  there  must  be  a  just  com- 
pensation allowed  and  paid.  To  tax  occupations  out- 
side of  the  city,  for  the  benefit  of  those  living  in  the 
city  is  in  effect  taking  the  property  of  the  citizens  for 
private  use :  that  is,  for  the  use  of  a  particular  com- 
munity, of  ivhich  the  outside  citizens  form  no  part. 
Whether  it  he  called  a  tax  or  the  appropriation  of  prop- 
erty, the  result  is  precisely  the  same.'' 

Here  again  the  offending  power  is  the  tax  power. 
"All  property  subject  to  taxation  shall  be  taxed  in  pro- 
portion to  its  value, "  is  the  only  limitation  in  express 
tenns  on  the  taxing  power,  eo  nomine.  But  this  license 
tax  ordinance  and  the  charter  authorizing  it,  take  pri- 
vate property  for  private  use  against  a  prohibition  in 
the  state  Constitution,  implied  from  the  very  nature  of 
the  Constitution,  and  even  if  it  had  taken  it  for  public 
use  it  would  have  been  invalid  as  taking  private  prop- 
erty for  public  use  without  just  compensation.  The 
property  here  taken  was  the  money  value  of  the  license. 

In  the  Toivn  of  Cameron  v.  Stephenson,  69  Mo. 
371,  Wells  V.  Weston  and  St.  Charles  v.  Nolle,  were  re- 
ferred to  and  approved.  Stephenson  held  a  deed  to  lot 
78  in  the  town  of  Cameron.  He  paid  city  taxes  for  five 
years.    He  had  voted  as  a  citizen  for  $50,000  railroad 


Chap.  1]  Restraints  Implied.  9 

bonds  and  now  proposed  to  repudiate  the  tax.  He 
claimed  (and  it  was  a  fact)  that  his  hind  was  not  in 
the  town.  The  tax  was  invalid,  as  being  without  au- 
thority. The  statute  and  ordinance  violated  this  im- 
plied proliibition  in  tlie  Constitution  against  taking  pri- 
vate property  for  piivate  use.  Here  again  the  offend- 
ing power  is  the  tax  power. 

In  all  these  cases  property  was  taken,  or  about  to 
be  taken.  Wells'  land  was  about  to  be  taken;  Fritz 
Nolle 's  money  was  about  to  be  taken;  Stephenson's 
town  lots  were  about  to  be  taken.  In  all  these  cases 
the  law  was  literally  complied  with  as  to  taxation  ac- 
cording to  value. 

Speaking  of  limitations  of  the  powers  of  govern- 
ment not  in  a  written  constitution,  the  St.  Louis  Court 
of  Appeals,  in  May,  1882,  in  the  case  of  The  State  of 
Missouri  v.  Addingtori,  12  Mo.  App.  21-4:,  at  221  (top) 
says  through  Seymour  D.  Thompson,  Judge,  rendering 
the  opinion : 

' '  On  the  other  hand  there  is  no  such  thing,  in  a 
free  countiy,  as  absolute,  unrestrained  power  in  any 
branch  of  the  government;  and  while  there  are  fre- 
quent expressions  to  the  effect  that  a  statute  will  never 
be  declared  void  unless  the  objector  can  put  his  finger 
upon  some  specific  provision  of  the  Constitution  which 
has  been  transcended,  yet  we  are  disposed  to  concede 
that  there  is  in  tliis  country,  such  a  thing  as  an  unwrit- 
ten constitution;  tliat  there  are  implied  reservations 
of  private  right  in  every  free  government  of  such  an  ab- 
solute character  that  laws  infringing  them  will  not  be 
enforced  by  the  judicial  courts."  Loan  Association  v. 
Topela,  20  Wall.  605,  is  referred  to. 

State  V.  Addington,  quoted  from  above,  did  not  di- 
rectly involve  the  tax  power.  Loan  Association  v.  To- 
peka,  above,  is  a  writ  of  error  to  the  United  States  Cir- 
cuit Court  of  Kansas  from  the  Supreme  Court  of  the 
United  States.    The  decision  construed   the   Coustitu- 


10  Law  of  Local  Taxation.  [Chap.  1 

tiou  of  the  State  of  Kansas,  not  that  of  the  United 
States.  Hence  this  decision  does  not  have  the  binding 
force  of  a  decision  of  the  State  Supreme  Court  con- 
stniing  its  own  Constitution  not  charged  to  be  repug- 
nant to  any  portion  of  the  United  States  Constitution. 
But  it  is  a  suit  on  municipal  bonds.  The  validity  of 
the  bonds  depended  on  the  power  to  tax  persons  and 
property.  The  bonds  were  to  encourage  manufactur- 
ing in  Topeka  under  a  special  act  of  the  Kansas  Legis- 
lature. That  the  suit  was  brought  on  these  bonds  in  the 
circuit  court  of  the  United  States  and  not  in  the  state 
court  ivas.  a  matter  to  he  expected,  although  it  is  to  be 
regretted  that  the  Supreme  Court  of  Kansas  was  not 
required  to  pass  on  her  own  Constitution.  Mr.  Justice 
Clifford  alone  dissented. 

Mr.  Justice  Miller  rendered  the  opinion  of  the 
court.  He  states  that  there  were  two  reasons  urged 
against  the  constitutional  validity  of  the  act  of  the 
Kansas  Legislature.  The  first  ground  or  reason  urged 
against  the  constitutional  validity  of  the  act  of  the 
Kansas  Legislature  is  founded  on  the  language  of  sec- 
tion 5  of  article  12  of  the  Constitution  of  the  State  of 
Kansas,  whereby  it  is  provided  that,  ''Provision  shall 
be  made  by  general  law  for  the  organization  of  cities, 
towns,  and  villages;  and  their  power  of  taxation,  as- 
sessment, borrowing  money,  contracting  debts,  and 
loaning  their  credit,  shall  be  so  restricted  as  to  prevent 
the  abuse  of  such  power."  (20  Wall,  at  658.)  No  re- 
strictions were  made  and  consequently  the  act  was 
void.  The  court  remit  this  question  to  the  courts  of 
Kansas  and  place  their  decision  on  the  second  ground 
or  proposition.  That  proposition  (p.  659)  is  "that  the 
act  authorizes  the  towns  and  other  municipalities  to 
which  it  applies,  by  issuing  bonds  or  loaning  their  cred- 
it, to  take  the  property  of  the  citizen  under  the  guise 
of  taxation  to  pay  these  bonds,  and  use  it  in  aid  of  the 
enterprises  of  others  tvhich  are  not  of  a  public  charac- 


Chap.  1]  Restraints  Implied.  11 

ter,  thus  perverting  the  right  of  taxation,  ivhich  can 
only  be  exercised  for  a  public  use,  to  the  aid  of  indi- 
didual  interests^  and  personal  purposes  of  profit  and 
gain.  The  proiwsition  thus  broadly  stated  is  not  new, 
nor  is  the  question,  which  it  raises  difficult  of  solu- 
tion." 

After  observing  that  in  general  if  a  municipal  cor- 
poration contract  a  debt,  it  must  be  paid  by  general 
taxation,  and  if  the  corporation  can  not  tax  for  the  pur- 
pose it  can  not  make  the  contract,  the  court  further 
say  (p.  662) : 

"We  have  referred  to  this  history  of  the  contest 
over  aid  to  railroads  by  taxation,  to  show  that  the 
strongest  advocates  for  the  validity  of  these  laws  never 
placed  it  on  the  ground  of  the  unlimited  power  of  the 
state  Legislature  to  tax  the  people,  but  conceded  that 
where  the  purpose  for  which  the  tax  was  to  be  issued 
could  no  longer  be  justly  claimed  to  have  this  public 
character,  but  was  purely  in  aid  of  private  or  i^ersonal 
objects  the  law  authorizing  it  was  beyond  the  legisla- 
tive power,  and  was  an  unauthorized  invasion  of  ])ri- 
vate  right.  It  must  be  conceded  that  there  are  such 
rights  in  every  free  government  beyond  the  control  of 
the  State.  A  government  which  recognized  no  such 
rights,  which  held  the  lives,  the  liberty  and  the  property 
of  its  citizens  subject  at  all  times  to  the  absolute  dis- 
position and  unlimited  control  of  even  the  most  demo- 
cratic depository  of  power,  is  after  all  but  a  despot- 
ism. It  is  true  it  is  a  desx>otism  of  the  many,  of  the 
majority,  if  you  choose  to  call  it  so,  but  it  is  none  the 
less  a  despotism.  It  may  well  be  doubted  if  a  man  is 
to  hold  all  that  he  is  accustomed  to  call  his  own,  all  in 
which  he  has  placed  his  happiness,  under  the  unlimited 
dominion  of  others,  whether  it  is  not  wiser  that  this 
power  should  be  exercised  by  one  man  than  many. 

**The  theory  of  our  governments,  state  and  nation- 
al, is  opposed  to  the  deposit  of  unlimited  power  any- 


12  Law  of  Loc.^l  Taxation.  [Chap.  1 

where.  The  executive,  the  legislative,  and  the  judicial 
branches  of  these  governments  are  all  of  limited  and 
defined  powers. 

*  *  There  are  limitations  on  such  power  which  grow 
out  of  the  essential  nature  of  all  free  governments.  Im- 
plied reservations  of  individual  rights,  without  which 
the  social  comj)act  could  not  exist,  and  which  are  re- 
spected by  all  governments  entitled  to  the  name.  No 
court,  for  instance,  would  hesitate  to  declare  void  a 
statute  which  enacted  that  A  and  B,  who  were  husband 
and  wife  to  each  other,  should  be  so  no  longer,  but  that 
A  should  thereafter  be  the  husband  of  C,  and  B  the 
wife  of  D.  Or,  which  should  enact  that  the  homestead 
now  owned  by  A  should  no  longer  be  his  but  should 
henceforth  be  the  property  of  B.     .     .     . 

''This  power  can  as  readily  be  employed  against 
one  class  of  individuals  and  in  favor  of  another,  so  as 
to  ruin  the  one  class  and  give  unlimited  wealth  and 
prosperity  to  the  other,  if  there  is  no  implied  limitation 
of  the  uses  for  which  the  power  may  be  exercised. 

"To  lay  with  one  hand  the  power  of  the  govern- 
ment on  the  property  of  the  citizen,  and  with  the  other 
to  bestow  it  upon  favored  individuals  to  aid  private 
enterprises  and  build  up  private  fortunes,  is  none  the 
less  a  robbery  because  it  is  done  under  the  forms  of 
law  and  is  called  taxation.  It  is  a  decree  under  legis- 
lative forms." 

After  defining  what  is  a  tax  and  declaring  that  the 
purjjose  must  be  public,  and  after  quoting  from  Nor- 
thern Liberties,  v.  St.  John's  Church,  13  Penn.  104,  et 
seq.  (quoted  in  our  own  Supreme  Court  and  elsewhere 
referred  to  in  this  book),  and  after  citing  other  author- 
ities, the  court  continuing  says : 

"But  in  the  case  before  us,  in  which  the  towns  are 
authorized  to  contribute  aid  by  way  of  taxation  to  any 
class  of  manufacturers,  there  is  no  difficulty  in  holding 
that  this  is  not  such  a  public  purpose  as  we  have  been 


CliaiD.  1]  Restraints  Implied.  13 

considering.  If  it  be  said  that  a  benefit  results  to  the 
local  i^ublic  of  a  town  by  establishing  manufactories, 
the  same  may  be  said  of  any  other  business  or  pursuit 
which  employs  capital  or  labor.  The  merchant,  the  me- 
chanic, the  innkeeper,  the  banker,  the  builder,  the 
steamboat  owner  are  equally  deserving  the  aid  of  the 
citizens  by  forced  contributions.  No  line  can  be  drawn 
in  favor  of  the  manufacturer  which  would  not  open  the 
coffers  of  the  public  treasury  to  the  importunities  of 
two-thirds  of  the  business  men  of  the  city  or  town. ' ' 

The  court  refer  to  a  number  of  cases  of  similar  im- 
port, among  them  Allen  v.  Inhahitants  of  Joy,  60  Me. 
124,  where  town  bonds  wore  voted  to  Messrs.  Hutchin- 
son and  Lane  to  build  in  the  town  a  steam  sawmill, 
gristmill  and  box  factory  machinery ;  and  the  $20,000,- 
000  in  bonds  to  aid  private  property-owners  in  rebuild- 
ing their  houses  after  the  great  Boston  fire  in  1872,  and 
another  to  aid  a  school  established  under  a  will  not  un- 
der the  ownership  or  control  of  public.  [Allen  v.  In- 
habitants of  Joy,  60  Maine  127;  Lowell  v.  Boston,  re- 
ferred to  in  20  Wall.  660,  note  at  bottom  of  page,  as 
then  in  MS.] 

Cole  V.  LaGrange,  113  U.  S.  1,  is  a  suit  on  bonds  is- 
sued by  the  town  of  LaGrange  in  Missouri  to  encourage 
the  manufacture  (in  the  town)  of  steel  and  its  pro- 
duct. Bonds  were  issued  December  14,  1871,  decided 
in  Washington  January  5,  1885.  Mr.  Justice  Gray  in 
rendering  the  opinion  says: 

"The  general  grant  of  legislative  power  in  the 
constitution  of  a  state,  does  not  enable  the  Legislature, 
in  the  exercise  either  of  the  right  of  eminent  domain  or 
of  the  right  of  taxation,  to  take  private  property,  with- 
out the  owner's  consent,  for  any  but  a  public  object. 
Nor  can  the  Legislature  authorize  counties,  cities  or 
towns  to  contract,  for  private  objects,  debts  which  must 
be  paid  by  taxes.  It  can  not,  therefore,  authorize  them 
to  issue  bonds  to  assist   merchants  or  manufacturers. 


14  Law  of  Local  Taxation.  [Chap.  1 

whether  natural  persons  or  corporations,  in  their  pri- 
vate business.  These  limits  of  the  legislative  power 
are  now  too  firmly  established  by  judicial  decision  to 
require  extended  argument  upon  the  subject." 

In  Fletcher  v.  Peck,  6  Cranch  87.  at  135-6,  Chief 
Justice  Marshall  says : 

' '  It  may  well  be  doubted  whether  the  nature  of 
society  and  of  government  does  not  prescribe  some  lim- 
its to  the  legislative  power;  and  if  any  be  prescribed, 
where  are  they  to  be  found,  if  the  property  of  an  indi- 
\idual,  fairly  and  honestly  acquired,  may  be  seized 
without  compensation.  To  the  Legislature  all  legisla- 
tive power  is  granted;  but  the  question  whether,  the 
act  of  transferring  the  property  of  an  individual  to  the 
public,  he  in  the  nature  of  legislative  power,  is  well 
ivorthy  of  serious  reflection." 

''Indeed,  in  a  free  government  almost  all  other 
rights  would  become  utterly  worthless  if  the  govern- 
ment possessed  an  uncontrollable  power  over  the  pri- 
vate fortune  of  every  citizen.  One  of  the  fundamental 
objects  of  every  good  government  must  be  the  due  ad- 
ministration of  justice;  and  how  vain  it  would  be  to 
speak  of  such  an  administration,  when  all  property  is 
subject  to  the  will  or  caprice  of  the  Legislature  and 
the  rulers."  [Story  on  Constitution  of  the  United 
States,  sec.  1790.] 

Shall  we  say  that  the  government  does  not  have  an 
uncontrollable  power  over  the  private  fortunes  of  any 
citizen  except  by  taxation?  Shall  we  say  that  all  the 
powers  of  a  government  are  limited  by  implication  ex- 
cept the  implied  power  to  tax  ?  If  the  power  to  tax  be 
unlimited,  of  what  avail  are  other  limitations?  ''Taxes 
may  be  levied  and  collected  for  public  purposes  only," 
was  not  in  the  Constitution  of  Missouri  till  adopted  in 
1875,  in  sec.  3,  art.  10,  of  that  Constitution.  Certain 
municipal  bonds  are  invalid  because,  to  pay  the  bonds, 
taxes  must  be  levied  and  collected  and  taxes  can  be  lev- 


Chap.  1]  Restraints  Implied.  15 

ied  and  collectod  for  a  public  purjwse  only.     Here  is  a 
limitation  on  the  taxing  power. 

In  Wells  V.  Weston,  St.  Charles  v.  Nolle,  Cameron 
V.  Stephenson,  State  v.  Addington,  Loan  Association 
V.  Topeka,  Cole  v.  LaGrange,  Fletcher  v.  Peck,  Allen  v. 
Inhabitants  of  Joy,  and  in  case  of  the  bonds  to  aid 
those  who  suffered  by  the  Boston  fire,  there  was  no  con- 
demnation proceeding— no  exercise  of  the  right  of  em- 
inent domain.  In  all  these  cases  there  was  no  power  to 
tax  not ivith standing  the  evident  benefit  derived  from 
the  tao),  in  Wells  v.  Weston,  Loan  Association  v.  To- 
peka, St.  Charles  v.  Nolle,  Stephenson  v.  Cameron  and 
Cole  V.  LaG range.  But  if  the  property  in  any  of  the 
cases  had  been  damaged  and  the  tax  had  been  by  the 
front  foot,  it  would  now  doubtless  be  held  valid. 

The  people  of  Weston  built  up  a  large  town.  They 
brought  as  it  were  a  convenient  market  almost  to  the 
very  doors  of  those  living  within  one-half  mile  of  the 
city  limits,  yet  ^Ir.  Wells  and  others  living  within  this 
half-mile  limit  could  not  be  taxed  on  that  account  on. 
the  benefited  land.  There  was  no  tax  except  upon  the 
land.  Mr.  Wells  was  not  required  to  pay  $300  in  the 
form  of  a  tax-bill  for  doing  $2,750  damage  to  his  land. 
The  railroad  built  into  Cameron  did  not  damage  Mr. 
Stephenson's  lot  $2,750  nor  was  he  required  to  pay  $300 
in  addition  as  the  cost  of  doing  this  damage,  making  the 
real  loss  $3,050.  The  establishment  of  the  factories 
would  have  benefited  Topeka  and  La  Grange.  The 
damage  would  not  have  been  ten  times  the  cost  of  the 
factories. 

"It  may  be  often  difficult  to  draw  the  line  between 
a  legitimate  exercise  of  the  taxing  power  and  the  arbi- 
trary seizure  of  the  property  of  an  individual,  or  of  a 
class  of  individuals,  for  local  or  general  punooses,  un- 
der the  mask  of  this  power.  In  Chaong  v.  Hoover  (9 
Ben  Monroe  330)  the  question  was  as  to  the  constitu- 
tionalitv  of  a  law  extending  the  limits  of  the  town  of 


16  Law  of  Local  Taxation.  [Chap.  1 

Hopkinsville,  for  the  mere  puri>ose,  as  the  party  al- 
leged, of  bringing  his  property  within  the  corporation 
as  a  subject  of  taxation;  and  the  judge  who  delivered 
the  opinion  of  the  court  remarked : 

' '  This  is  not  a  case  of  vacant  land  or  of  a  well-im- 
proved farm  occui^ied  by  the  owner  and  his  family  for 
agTicultural  purposes  and  which,  without  being  re- 
quired for  either  streets  or  houses  or  for  any  other  pur- 
pose of  the  town  but  that  of  increasing  its  revenue,  is 
brought  within  its  taxing  power  by  an  act  extending 
its  limits.  Such  an  act,  though  on  its  face  simply  ex- 
tending the  limits  of  a  town,  and  presumptively  a  legit- 
imate exercise  of  power  for  that  purpose,  would  in  re- 
ality when  ai^plied  to  the  facts,  be  nothing  more  or  less 
than  authority  to  the  town  to  tax  the  land  to  a  certain 
distance  outside  of  its  limits  and  in  effect  to  take  the 
money  of  the  proprietor  for  its  own  use,  without  com- 
pensation to  him" 

The  reader  will  notice  that  this  is  an  exercise  of 
the  tax  power  by  which  money  is  taken  without  compen- 
station.    The  court  continuing  say  (22  Mo.  390) : 

' '  That  limit  can  only  consist  in  the  discrimination 
to  be  made  between  what  may  with  reasonable  plausi- 
bility be  called  a  tax,  and  for  which  it  may  be  assumed 
that  the  objects  of  taxation  are  regarded  by  the  Legis- 
lature as  forming  a  just  compensation,  and  that  which 
is  palpably  not  a  tax,  but  is  under  the  form  of  a  tax,  or 
in  some  other  form,  the  taldng  of  jorivate  property  for 
the  use  of  others  or  of  the  public,  without  compensation 
and  in  which  it  is  apparent  that  the  burthen  is  imposed 
without  any  view  to  the  interest  of  the  individual  in 
the  objects  to  be  accomplished  by  it.  If  it  be  so,  no 
matter  under  what  form  the  power  is  professedly  ex- 
ercised, whether  it  is  in  the  form  of  laying  or  author- 
izing a  tax,  or  in  the  regulation  of  local  divisions,  or 
boundaries  which  result  in  a  subjection  to  local  taxes ; 
and  whether  the  operation  be  to  appropriate  the  prop- 


Chap.    1]  Kkstraints    [mi'likd.  17 

erty  of  one  or  more  individuals  without  their  consent, 
to  tlie  use  of  the  general  or  local  ])ublic,  or  to  the  use 
of  other  private  individuals,  or  a  single  individual,  the 
case  must  be  regarded  as  coming  within  the  prohibi- 
tion contained  in  this  clause,  or  the  C(mstitution  is  im- 
potent for  the  i)rotection  of  individual  rights  of  i^rop- 
erty  from  any  aggression,  however  flagrant,  which  may 
be  made  upon  them,  provided  it  be  done  under  color 
of  some  recognized  power." 

In  1853,  in  Sharpless  v.  Mayor  of  Philaddphia  (21 
Pa.  St.  147)  the  Supreme  Court  of  Pennsylvania  say, 
per  Black,  Judge,  rendering  the  opinion: 

"It  is  said  that  this  is  a  taking  of  private  property 
for  private  use.  If  this  be  so  it  is  ])aliiably  unconstitu- 
tional. Perhaps  there  is  nothing  in  the  books  which 
shows  the  tenacity  with  which  this  court  has  adhered  to 
the  letter  of  the  Constitution  in  determining  the  extent 
of  legislative  power  more  phiinly  than  the  doul)t  which 
was  once  entertained  in  Harvey  v.  Thomas,  10  Watts 
63,  whether  the  want  of  an  express  inhibition  did  not 
permit  the  Assembly  to  take  one  man's  property  and 
give  it  to  another.  The  Constitution  does  prohibit  it. 
It  is  not  }rifhi)i  the  general  grant  of  leyislatire  power. 
It  would  be  a  gross  usurpation  of  judicial  authority  and 
would  violate  the  very  words  of  section  2,  art.  9  [This 
must  be  an  erroneous  citation,  a  misprint— Ess.].  The 
Legislature  could  not  make  such  a  rescript  (for  it 
would  not  be  a  law)  any  more  than  they  could  order  an 
innocent  man  to  be  put  to  death  without  trial." 

The  legislative  acts  did  not  take  private  property 
for  public  use  in  that  case. 

In  these  tax  cases,  "Private  property  is  taken." 

o 


CHAPTER  2. 

LOCAL  TAXATION     IN     CONNECTION     WITH  THE  EXERCISE  OP 
THE  POWER  OF  EMINENT  DOMAIN. 

The  mischievous  effects  resulting  from  tlie  over- 
throw of  constitutional  laws  in  reference  to  taxation 
first  appear  in  connection  with  the  exercise  of  what  is 
usually  called  the  power  of  eminent  domain.  Here  is 
the  origin  of  the  citizens'  troubles  —  troubles  which 
well  nigh  render  the  holding  of  property  impossible  be- 
cause of  the  excessive  burdens  imposed  upon  it.  Look 
at  its  histoiy  in  the  courts.  Meacham  v.  The  Fitclihurg 
Railroad  Company,  4  Cush.  291,  is  erroneously  cited 
in  Neifhy  v.  Platte  Connty,  25  Mo.  258,  loc.  cit.  276. 
(Citation  of  page  392  is  erroneous.)  In  this  case  Mea- 
cham was  the  owner  of  several  tracts  of  land  in  the 
town  of  AVatertown,  Massachusetts.  Commissioners 
were  appointed  to  assess  damages  to  Mr.  Meacham  for 
liis  land  to  be  taken  for  a  railroad.  He  owned  several 
other  tracts  of  land  in  Watertown.  The  commission- 
ers made  their  report  and  Mr.  Meacham  being  dissat- 
isfied with  it  filed  in  the  common  pleas  court  his  petition 
to  revise  the  damages  awarded  to  him.  The  case  was 
tried  before  a  jury.  The  railroad  company  was  re- 
spondent or  ''respondents"  (in  the  plural).  In  the 
course  of  the  trial  the  railroad  company  "proved  that 
the  petitioner  (Meacham)  at  the  time  of  the  laying  of 
the  railroad,  and  ever  since,  was  the  owner  of  certain 
other  lands  and  buildings  in  Watertown,  near  but  not 
adjoining  the  lands  described  in  the  petition;  they  then 
offered  evidence  for  the  purpose  of  showing  that  since 
the  laying  out  and  construction  of  the  railroad  and  in 
consequence  thereof,  the  lands  and  buildings  of  the  pe- 

(18) 


Chap.  2]         Power  of  Eminent  Domain.  19 

titioner,  other  than  the  lands  described  in  tlie  petition, 
and  separate  therefrom,  as  aforesaid,  had  increased  in 
value  to  the  i)etitioner.  But  the  evidence  so  offered  be- 
ing objected  to,  the  presiding  oflBcer  decided  that  it  was 
inadmissil)Ie;  and  to  this  decision  the  respondents  (the 
railroad  company)  excejited.  After  all  the  evidence  wa'^ 
in,  the  presiding  officer  instructed  the  jury,  ''that  if 
they  were  satisfied  the  laying  out  and  construction  of 
the  respondent's  railroad  had  created  or  occasioned 
any  benefit  or  advantage  to  the  lands  of  the  ))otitioner, 
described  in  his  petition  or  immediately  adjoining  or 
connected  therewith,  rendering  the  part  not  actually  oc- 
cuined  by  resj)ondent  more  convenient  or  useful  to  the 
petitioner,  or  giving  it  some  jieculiar  increase  of  value 
in  the  Wcinity,  it  would  be  their  duty  to  allow  for  such 
benefits  or  increase  of  value  by  way  of  set-off  in  favor 
of  the  res]X)ndents ;  but  tliat,  on  the  other  hand,  if  the 
construction  of  the  respondent's  railroad,  by  increasing 
the  convenience  of  Watertown  generally  as  a  place 
of  residence,  and  by  its  anticipated,  and  probable  ef- 
fect or  influence  in  increasing  the  population, 
business  and  general  prosperity  of  the  place  had  been 
the  occasion  of  an  increase  in  the  saleable  value  of  real 
estate  generally  near  their  depot,  including  the  peti- 
tioner's said  lands,  and  thereby  occasioning  a  benefit 
or  advantage  to  him  in  common  with  other  real  estate 
owners  in  the  vicinity  this  benefit  would  be  too  contin- 
gent, indirect  and  remote,  to  be  brought  into  considera- 
tion in  this  question  of  damages  to  a  particular  parcel 
of  land."    To  these  instructions  the  railroad  excepted. 

After  remarking  on  the  general  character  of  the 
statutes  allowing  general  benefits  to  the  owners  of  the 
lands,  the  court  say : 

**The  Revised  Statutes,  chapter  24,  section  31,  in 
like  manner,  ]irovide  generally  for  an  allowance  by  way 
of  reduction  for  such  advancement  in  value  of  other 
property.     That  there  must  be  some  limitation  of  the 


20  Law  of  Local  Taxation.  [Chap.  2 

proposition  that  the  respondents  may  show  in  reduc- 
tion of  damages  any  collateral  tenefit  which  the  peti- 
tioner has  received  in  his  other  property,  seems  quite 
obvious.  The  party  whose  land  has  been  taken  for  a 
railroad,  has  a  right,  in  common  with  his  other  fellow 
citizens,  to  the  benefit  arising  from  the  general  rise  of 
property  in  the  vicinity,  occasioned  by  the  establish- 
ment of  the  railroad  and  the  facilities  connected  there- 
with." If  he  has  such  right  then  the  railroad  company 
cannot  compel  him  either  to  pay  cash  for  such  benefit  or 
what  is  the  same  thing.  The  railroad  company  can  not 
tax  it  or  deduct  it  from  his  compensation  in  the  con- 
demnation proceeding.  This  opinion  is  followed  in 
Neifhy  v.  Platte  County,  25  Mo.  258.  The  Massachu- 
setts statute  i^ro^dded  "Generally  for  an  allowance  by 
way  of  deduction  for  such  advancement  in  the  value  of 
other  property."  The  Missouri  statute  provided  that 
the  commissioners  "Shall  take  into  consideration  the 
advantages  as  well  as  the  disadvantages  of  the  road  to 
such  person." 

This  Missouri  statute  did  not  nor  did  the  Massachu- 
setts statute  in  tenns  restrict  these  advantages  or 
benefits  to  such  as  were  peculiar,  special  and  excep- 
tional to  the  part  left  not  enjoyed  in  common  with 
other  landowners  in  the  vicinity. 

The  statute  of  Missouri  and  that  of  Massachusetts 
would  both  have  been  adjudged  unconstitutional  if 
either  had  allowed  general  advantages  to  be  deducted 
from  his  "just  compensation."  The  constitutional 
provision  infringed  was,  "Private  property  shall  not 
be  taken  for  public  use  without  just  compensation." 

There  is  no  pretense  of  any  infraction  of  the  nile  of 
constitutional  law  that  "All  property  subject  to  taxa- 
tion shall  be  taxed  in  proportion  to  its  value."  A  stat- 
ute can  not  be  enacted  to  diminish  ' '  the  just  compensa- 
tion" required  by  the  Constitution  to  be  paid   to   the 


Chap.  2]         Power  of  Eminent  Domain.  21 

owner  for  land  taken  for  iniblic  use  if  such  diminution 
rests  on  tlie  ground  that  there  is  in  fact  only  a  general 
benefit  to  the  owner  of  the  land.  There  must  be  not 
only  a  benefit  to  the  land  from  which  a  part  was  taken; 
that  benefit  nmst  be  sj^ecial,  peculiar,  not  enjoj-ed  by 
the  owner  in  common  with  other  land  in  the  vicinity. 
The  exaction  of  this  general  benefit  can  not  be  made 
from  this  ''just  compensation"  allowed,  nor  from  the 
owner  personally,  nor  as  a  charge  on  other  land  or 
property  of  the  owner.  The  power  that  diminishes 
this  "just  compensation"  by  reason  of  benefits  to  other 
lands  is  the  tax  power.  In  the  road  law  of  the  District 
of  Columbia  (27  U.  S.  Statutes  at  Large,  p.  535,  sec.  2) 
similar  language  is  used  and  construed  in  like  manner 
by  the  Supreme  Court  of  the  United  States  in  Bauman 
V.  Ross,  167  U.  S.  554,  at  577. 

"It  would  oiierate  with  great  inequality  to  hold 
that  where  there  are  various  indi\aduals,  each  owning 
large  manufacturing  or  trading  establishments  in  the 
immediate  vicinity  of  a  railroad,  but  without  being  ad- 
joining to  or  connected  with  the  located  limits  of  such 
railroad,  one  of  whom  is  the  owner  of  a  parcel  of  land 
situated  in  another  part  of  the  town  over  which  the  rail- 
road is  actually  located,  that  as  to  the  latter,  he  is  by 
way  of  reduction  of  damages  for  his  land  thus  taken,  to 
be  charged  for  all  the  incidental  benefits  which  he  re- 
ceives from  the  location  of  the  railroad  in  the  vicinity 
of  his  other  land,  while  the  land  of  others  is  exemi^t 
from  any  contribution.  .  .  .  The  gTeat  and  lead- 
ing principle,  to  authorize  such  reduction  of  damages, 
is  the  direct  benefit,  or  increase  of  value  to  the  remain- 
ing tract  or  parcel  of  land,  by  reason  of  the  railroad 
}>assing  through  the  lot  or  tract  as  to  which  damages 
are  assessed."     [S.  C,  4  Cush.  292.] 

The  exaction  can  not  be  made  by  deducting  gen- 
eral benefits  from  this  "just  compensation,"  or  by  ex- 


22  Law  of  Local  Taxation.  [Chap.  2 

action  of  the  amount  from  the  owner  personally  or  as 
a  charge  or  lien  on  other  lands  or  property.  This  exac- 
tion can  not  be  made  under  the  power  of  eminent  do- 
main, or  the  police  power,  or  the  power  of  taxation  gen- 
eral or  special. 

In  McQniddy  v.  Smith,  67  Mo.  App.  205,  et  seq., 
Mrs.  Smith's  lot  by  the  grading  was  damaged  $2,750 
according  to  the  decision  by  court  and  jury.  Under  the 
old  Constitution  of  Missouri  this  damage  was  not  a 
taking,  and  hence,"  damnum  absque  injuria/'  but 
would  the  court  have  put  a  special  tax  or  sustained  a 
special  tax  on  this  damaged  lot  to  pay  this  presumptive 
benefit  (in  fact  a  damage  of  $2,750)  ? 

The  case  of  James  River  and  Kanawha  Company 
V.  Turner,  9  Leigh's  Eeports  313,  loc.  cit.  334,  is  well 
reasoned  on  principle.  The  reporter's  headnote  is 
thus: 

''And  it  seems  that  if  the  charter  had  provided  that 
advantages  of  a  general  character,  which  the  owner  of 
the  land  condemned  may  derive  from  the  improvement 
in  coimnon  with  the  country  at  large,  should  be  set  off 
against  the  actual  value  of  the  land  condemned  and  ac- 
tual damages  sustained  by  the  owner,  such  provision 
would  have  been  unconstitutional."  The  opinion  of 
the  court  ''Puts  the  finger  on  the  provision  of  the  Con- 
stitution" violated,  viz.,  the  Constitution  of  Virginia, 
art.  3,  sec.  2  which  has  provided,  that  the  Legislature 
shall  pass  no  law  "Whereby  private  property  shall  be 
taken  for  public  uses,  without  just  compensation." 

Says  Judge  Brockenbrough  in  rendering  the  opin- 
ion: 

"It  could  not  have  been  intended  to  authorize  the 
company  to  seize  on  and  sequester  the  property  of  an 
individual,  and  under  j^retext  of  making  him  a  compen- 
sation for  that  property,  to  claim  a  set-off  for  a  general 
advantage,  which  will  deprive  him  of  the  just  compen- 
sation intended  bv  the  Constitution.    It  is  not  credible, 


Chap.  2]         Power  of  Eminent  Domain.  23 

in  my  opinion,  that  the  Legislature  intended  to  compen- 
sate the  riparian  jji'oprietor  for  tlie  land  taken  for  pub- 
lic uses,  by  the  vahie  of  the  real  or  supi)Osed  advan- 
tages derived  from  the  improved  navigation,  when 
those  same  advantages  were  conferred  freely  on  all 
others,  without  being  looked  upon  as  a  compensation. 
.  .  .  But  even  if  there  were  no  tolls,  or  if  the  tolls 
were  surrendered,  and  the  navigation  thrown  open  to 
the  public,  still  T  should  think,  that  the  riparian  pro- 
l)rietor  could  not  be  recpiired  to  pay  for  the  general  ad- 
vantages resulting  from  the  improvement.  His  land  is 
taken  from  him  without  his  consent,  and  for  that  he  is 
entitled  to  just  compensation.  The  advantage  which 
he  obtains  from  the  improved  navigation  is  not  of  his 
own  seeking;  he  obtains  it  from  the  public  legisla- 
tion, pursuing  the  public  policy  of  the  country-. 
Obtaining  it  fairly  in  that  way,  why  should  he  be 
deprived  of  it?  Why  should  he  pay  for  an  advan- 
tage which  is  in  some  sort  forced  upon  him  by  the  pub- 
lic, and  which  it  confers  on  him  not  with  the  particular 
view  of  benefiting  him,  but  for  its  own  wise  purpose." 

Presiding  Judge  Tucker,  after  stating  the  question 
at  issue  as  being  whether  general  advantages  can  be 
deducted  or  charged  as  part  of  the  just  compensation 
required  by  the  Constitution,  says : 

"It  is  obvious  as  has  been  observed  by  my  Brother 
Parker,  in  the  able  opinion  just  delivered,  that  in  a 
vast  majority  of  cases,  the  value  of  the  land  condemned 
for  a  public  improvement  will  bear  a  very  small  pro- 
portion to  the  enhancement  in  value  of  the  remainder 
of  the  tract;  I  mean  an  enhancement  not  arising  from 
advantages  peculiar  to  that  tract,  but  extending  to  the 
whole  community  upon  its  line,  and  arising  out  of  the 
salutary  influence  of  improved  facilities  of  transporta- 
tion, upon  the  value  of  all  the  real  estate  within  tlie 
circle  of  that  influence.    If.  therefore,  in  a  vast  major- 


24  Law  of  Loc-ll  Taxation.  [Chap.  2 

ity  of  the  cases,  the  value  of  the  condemned  land  will 
be  exceeded  by  the  enhancement  of  the  residue,  and  if 
that  enhancement  is  to  constitute  the  compensation, 
then  it  is  obvious,  that  in  a  vast  majority  of  cases  the 
Constitution  will  have  nothing  to  operate  upon ; 
and  this  great  and  important  principle  will  be 
confined  to  the  few  solitary  cases  (if  indeed  any  case 
shall  ever  occur)  in  which  the  proprietor  of  the  con- 
denmed  property  does  not  derive  from  the  public  work 
advantages  of  a  general  character,  equivalent  to  the 
value  of  what  is  taken  from  him. 

"Moreover,  it  is  obvious  under  this  construction 
of  the  instrument,  that  its  principle  may  be  extended 
to  a  variety  of  other  cases,  so  as  to  render  this  boasted 
provision  of  little  or  no  value.  Thus,  it  may  be  pro- 
vided, that  if  an  acre  of  one  man's  land  is  essential  to 
the  abutment  of  his  neighbor's  milldam,  it  shall  be  con- 
demned without  compensation  for  its  value,  provided  a 
jury  shall  believe  the  conveniences  of  the  mill  to  the 
owner  will  more  than  equal  the  value  of  the  portion  of 
the  land  taken  from  him.  And  so  with  respect  to  pub- 
lic roads  and  landings.  So,  too,  if  a  courthouse  is  to  be 
erected  upon  one's  land,  two  acres  may  be  condemned 
without  the  allowance  of  a  cent,  because  the  adjoining 
property  is  rendered  more  valuable  for  the  establish- 
ment of  inns,  storehouses,  and  other  like  advantages. 
If  such  be  the  meaning  of  this  clause  of  the  Constitu- 
tion, 'it  keeps  the  word  of  promise  to  the  ear,  but  breaks 
it  to  the  hope.'  It  is  a  mockery,  instead  of  a  wise,  just 
and  salutary  safeguard  of  the  rights  of  the  people.  The 
jus  publicum,  though  an  absolutely  essential  attribute 
of  sovereignty,  should  be  exercised  by  every  wise  and 
paternal  government,  with  just  respect  to  the  rights  of 
individuals.  It  is  enough  that  it  deprives  the  citizen  of 
his  property  without  his  consent;  it  is  enough  that  it 
deprives  him  of  that  monopoly,  which  might  enable  him 


Chap.  2]         Power  of  Eminent  Domain.  25 

to  exact  exorbitant  terms  for  his  pro]iei-ty;  it  is  enoujjh 
that  it  takes  from  him  the  privilege  of  bargaining  for 
himself,  and  appoints  others  to  bargain  for  him.  It 
therefore  makes  compensation  for  what  it  takes;  it 
does  not  put  a  cliarge  n])on  him  which  otliers  do  not 
bear;  it  aims  to  ])lace  the  public  burdens  eciually  upon 
all,  by  paying  the  proprietor  for  that  which  is  taken 
from  him.  This  is  the  very  object  of  the  Constitution. 
But  this  object  is  utterly  frustrated  if  private  property 
is  sunk,  and  its  value  extingnished,  by  setting  off  a  part 
of  those  incidental  advantages  to  which  the  owner  is 
entitled  in  common  with  all  others  within  the  sphere  of 
the  im])rovement.  He  is  not  only  deprived  of  the  right 
of  making  the  most  of  his  monopoly,  but  his  possession 
of  property  essential  to  the  canal,  which,  according  to 
the  ordinaiy  view  of  things,  would  give  him  great  ad- 
vantages, is  actually  converted  to  his  loss.  He  is  in  a 
far  worse  condition  than  his  neighbor  who  has  not  his 
advantages ;  for  the  neighbor  enjoys  all  the  benefits  of 
the  canal,  and  loses  none  of  his  land,  while  the  owner 
pays,  in  the  ]:>rice  of  his  land,  for  those  advantages 
which  others  get  for  nothing.  AMiat  benefit  does  the 
Constitution,  in  this  view,  confer  on  the  owner  of  land 
condemned  ?  AVhat  ]irotection  does  it  afford  for  his 
rights?  His  situation  is  just  the  same  as  if  the  provi- 
sion of  the  Constitution  had  never  been  made. 

Without  it,  he  would  have  enjoyed  all  the  advan- 
tages of  the  canal,  and  have  lost  none  of  his  land;  and 
under  its  protection,  what  more  does  he  get?  Abso- 
lutely nothing.  For  while  he  enjoys  the  benefit  of  the 
public  improvement,  in  common  with  his  fellow  citi- 
zens, he  receives  not  a  cent  for  the  property  taken  from 
him. 

*'The  whole  argument,  in  ti'uth,  a])]iears  to  me  to 
be  founded  in  a  want  of  due  attention  to  the  true  mean- 
ing of  the  terms  of  the  Constitution.  'Compensation' 
means  'A  recompense  given  for  a  thing  received.'    But 


26  Law  of  Local  Taxation.  [Chap.  2 

the  general  advantages  received  by  the  public  from  a 
public  improvement,  cannot  properly  be  said  to  be  a 
'Eecompense  given'  for  the  land,  for  they  are  equally 
conferred  on  those  who  lose  no  land.  Neither,  indeed, 
are  they  gi^ts  to  anybody.  They  are  a  mere  incident, 
or  accident,  arising  out  of  the  existence  of  the  improve- 
ment. They  are  like  the  benefit  conferred  on  me  by  my 
neighbor,  when  he  builds  a  merchant  mill  convenient 
to  my  barn,  I  am  benefited,  indeed,  but  that  benefit, 
though  conferred  by  him,  gives  him  no  claim  against 
me.  In  the  adventure  he  has  proceeded  with  a  view  to 
his  own  profit,  not  with  a  view  to  mine.  The  benefit  I 
enjoy  I  do  not  owe  to  his  liberality.  It  is  neither  a  gift 
ex  mero  motu,  nor  can  it  be  tortured  into  a  price  given 
for  what  he  has  taken  from  me.  It  can  create  no  debt ; 
it  can  pay  no  debt.  It  can  neither  give  a  right  of  ac- 
tion for  benefits  conferred  nor  can  it  give  a  right  of 
set-off  for  damages  done  or  property  condemned.  If 
it  could  give  such  right  of  set-off  it  is  not  perceived 
why  it  should  not  give  a  right  of  action  for  the  excess 
of  the  benefit  over  and  above  the  value  of  the  property 
taken.  Nor  can  I  imagine  how  the  company  is  to  com- 
pensate the  defendant  for  her  $350  worth  of  land  by 
setting  off  a  claim  for  benefits  conferred,  which  they 
never  could  enforce  by  suit,  and  for  which  they  can 
have  no  pretense  of  claim  legal  or  equitable. ' ' 

I  have  thus  quoted  freely  and  fully  from  these 
cases  on  the  ground  that  the  legal  and  practical  rea- 
sons advanced  appear  to  be  sound  and  well  founded  and 
in  the  opinion  of  the  writer  commend  themselves  to  the 
sense  of  justice,  honor  and  fair-dealing  of  every  one. 

A.  and  B.  each  owns  twenty  acres  of  land.  Ten 
acres  of  A. 's  land  is  taken  for  railroad  tracks,  depot 
and  switches.  The  land  of  each  is  worth  $20  per  acre 
before  the  advent  of  the  railroad.  By  the  advent  of 
the  railroad  all  lands  are  doubled  in  value.    A.'s  twenty 


Chap.  2]         Power  of  Eminent  Domain. 


27 


acres  was  worth  $400.  His  remaining  ten  acres  is  worth 

$400.  He  had  $40r>  worth  of  hind  l)efore  the  advent  of 
the  railroad.  He  has  $400  wortli  of  hind  after  it  was 
bnilt.  On  the  contrary,  B.  had  $40(>  worth  of  land  be- 
fore the  advent  of  the  road  and  $800  worth  of  land  after 
the  road  was  built.  A.  contributed  ten  acres  of  his  land 
to  double  the  price  of  B.  's  land.  The  depot  doubled  the 
price  of  B.'s  land  but  B.  did  not  pay  anything  for  it. 
The  ten  acres  might  have  been  devoted  to  the  construc- 
tion of  elegant  residences  and  thereby  B.  's  land  might 
have  been  doubled  in  value  but  no  law  can  be  enacted 
under  our  present  state  constitutions  that  will  compel 
B.  to  pay  any  portion  of  the  value  added  to  his  land  by 
his  residences  constructed,  however  elegant  they  may 
be.  The  intrinsic  value  of  the  land  is  not  changed ;  the 
fertility  of  the  soil  is  not  increased.  The  atmosphere 
(physical  and  moral)  is  not  changed  for  the  better.  We 
are  drifting  in  modern  commercialism.  Everything  and 
eveiybody  is  for  sale.  The  dollar-mark  is  put  on  every- 
thing, fewer  on  the  souls  of  men  than  on  other  articles 
of  commerce  on  the  well-known  princi])le  of  American 
constitutional  law,  "De  minimis  non  curat  lex." 

The  Supreme  Court  of  Missouri,  in  NeKhij  v. 
Platte  County,  follow  Meacham  v.  Fitzhugh  Rij.  Co., 
and  in  Garrett  v.  St.  Louis  refer  to  James  River  and 
Kanawha  Co.  v.  Turner,  and  approve  the  opinions  of 
Judges  Tucker  and  Brockenbrough,  quoted  supra. 

A  fuller  statement  is  demanded  of  the  case  of  Gar- 
rett V.  St.  Louis,  25  Mo.  505  (A.  D.  1857).  Say  the 
court  at  page  512 : 

"But  the  Constitution  intends  to  place  the  public 
burdens  ui)on  all  and  to  do  this  pays  the  proprietor  of 
land  for  what  is  taken  by  the  public.  //  he  is  paid  in 
advantages  ivhich  the  commumty  at  large  whose  land 
is  not  taken  enjoy  equally  with  himself,  the  spirit  of  the 
provision  might  be  said  to  he  violated.    His  loss  is  cer- 


28  Law  of  Local  Taxation.  [Chap.  2 

tain  and  specific  and  in  relation  to  the  land  whirh  is  not 
taken  he  only  receives  the  same  benefit  which  others 
receive  who  have  sustained  no  loss.  These  views  are 
very  forcibly  presented  by  Judges  Tucker  and  Brocken- 
brough  in  the  case  of  James  River  and  Kamawha  Com- 
pany V.  Turner,  9  Leigh  313." 

Garrett  v.  St.  Louis,  25  Mo.  506-7,  was  tried  on  an 
agreed  statement  of  facts.  Mr.  Garrett  had  im- 
])roved  his  lot.  The  buildings  were  valued  by 
the  jury  at  $1,440,  and  the  land  taken  was  worth 
$768.45,  making  land  and  buildings  worth  $2,208.45.  A 
part  of  Mr.  Garrett's  land  was  left.  A^Tiat  the  land  left 
was  worth  before  the  taking  or  after  is  not  stated.  The 
land  taken  was  worth  $768.45.  The  land  not  taken  was 
benefited  $763,  which  amount  was  a  lien  on  the  land  not 
taken.  The  value  of  the  land  taken  is  $5.45  more  than 
the  benefits  to  the  land  not  taken.  Say  the  court,  page 
508: 

''The  only  question  in  this  case  is  the  constitu- 
tionality of  the  second  section  of  the  amended  charter 
of  St.  Louis,  passed  February  23,  1853.  This  section, 
among  other  provisions,  authorizes  the  city  council  to 
open  streets;  and  when  for  this  purpose  it  becomes 
necessary  to  take  private  proj^erty,  it  provides  the  fol- 
lowing mode  of  ascertainng  the  compensation :  After 
notice  to  the  owner,  the  mayor  is  directed  to  impan- 
el a  jury,  whose  duty  it  is  made  to  ascertain  the  actual 
value  of  the  land  proposed  to  be  taken,  without  refer- 
ence to  the  proposed  improvemient.  To  pay  the  sum 
thus  ascertained  the  city  is  taxed  in  an  amount  equal 
to  the  value  of  the  improvement  to  the  public  gener- 
ally, and  the  remainder  is  assessed  against  the  property 
fronting  on  such  street,  and  in  the  blocks  next  adjacent, 
on  either  side  or  end  thereof,  according  to  the  value  of 
the  property  so  assessed,  and  in  the  proportion  that 
the  owners  thereof  may  he  respectively  benefited  hy 


Chap.  '2\         I*owER  OF  PJminknt  Domain.  29 

the  improvements/  Where  under  this  i)rovision,  the 
entire  lot  is  taken  for  the  street,  it  is  phiin  that  noth- 
ing more  has  been  done  than  an  exercise  of  tlie  rij^ht  of 
eminent  domain  and  in  a  mode  in  strict  conformity  to 
the  Constitution.  Tlie  owner  of  the  lot  taken  has  no 
cause  for  dissatisfaction,  since  he  is  paid  the  full  actual 
value  of  his  lot;  and  the  means  adopted  by  the  city 
to  raise  the  funds  for  this  payment  are  a  matter  of 
indifference  to  him.  But  where  the  entire  lot  is  not 
taken  or  where  the  owner  has  other  land  on  the  same 
street,  the  question  arises  whether  he  can  be  compen- 
sated in  the  mode  provided  by  the  charter." 

"That  this  assessment  upon  the  lotowners  front- 
ing upon  the  street  is  an  exercise  of  the  taxing  power 
seems  too  plain  to  admit  of  argument." 

Again,  at  page  514,  speaking  of  the  case  of  The 
People  V.  Mayor  of  Brooklyn,  6  Barb.  213,  where  the 
power  exercised  was  held  to  be  that  of  eminent  domain ; 
the  court  say : 

"That  decision  was  reviewed  and  overruled  by 
the  court  of  errors  (S.  C,  4  Comstock  420) ;  which  cir- 
cumstance is  calculated  to  destroy  its  authority  in  that 
State,  but  would  not  and  ought  not  to  impair  its  value 
here,  if  the  reasonings  and  conclusions  of  the  court 
were  such  as  to  command  the  assent  of  our  judgment. 
But  that  in  my  judgment  is  not  so:  neither  the  argu- 
ments nor  conclusions  are  satisfactory.  The  court  de- 
clare the  ]iower  exercised  by  the  Legislature  to  be  that 
of  eminent  donuiin  and  this  is  true  where  any  portion 
of  a  lot  is  taken  for  the  improvement,  but  is  plainly 
not  true  when  the  assessment  is  ui^on  those  whose  lots 
are  not  touched.  When  such  persons  are  assessed  it 
can  only  be  under  the  taxing  ]iower,  since  the  power 
of  eminent  domain  operates  only  u])on  individuals  and 
'without  reference  to  the  amount  or  value  exacted  from 
anv  other  individual  or  class  of  individuals;'  but  taxa- 


30  Law  of  Local  Taxation,  [Chap.  2 

tion  'operates  upon  a  community  or  upon  a  class  of 
persons  in  a  conmiunity,  and  by  soiue  rule  of  appor- 
tionment. '  "When  therefore  it  is  clear  that  this  assess- 
ment upon  one  class  of  lot-holders  is  an  exercise  of 
the  taxing  power,  there  is  no  reason  why  it  should  not 
be  held  to  be  an  exercise  of  the  same  power  upon  the 
other  class  whose  lots  are  taken  under  the  power  of 
eminent  domain  and  paid  for  according  to  their  exact 
value." 

Suppose  Mr.  John  Smith  owned  this  part  of  the 
land  not  taken  (I  mean  the  Garrett  land)  for  the  street ; 
then  the  assessment  will  be  upon  Mr.  Smith  and  the  lot. 
Mr.  Garrett  is  entitled  to  his  "just  compensation"  for 
his  house  and  lot  taken  for  public  use,  fixed  by  court 
and  juiy  at  $2,208.45.  The  sum  of  $763  is  upon  Mr. 
Smith  and  his  lot.  Let  execution  issue  against  Mr. 
Smith  and  his  lot  and  all  his  other  property.  The 
whole  of  Mr.  Smith's  property  was  sold  realizing,  say 
$263,  and  the  execution  is  returned  "nulla  bona." 
"\Miat  is  Mr.  Garrett  to  do  for  the  balance  of  his  "just 
compensation."  He  is  short  $500.  This  "just  compen- 
sation" must  be  paid  to  Mr.  Garrett  before  he  can  be 
compelled  to  give  up  his  house  and  lot. 

The  Constitution  intends  evidently  that  Mr.  Gar- 
rett shall  have  this  "just  compensation,"  $2,208.45, 
paid  to  him.  He  can  not  be  compelled  to  take  taxes 
that  may  or  may  not  be  paid  because  the  owner  taxed 
is  insolvent  or  the  property  taxed  is  of  less  value  than 
the  amount  of  the  tax  (as  in  Zoeller  v.  Kellogg,  4  Mo. 
App.  163,  where  the  tax  was  $1,688  on  property  worth 
$1,025).  It  is  utterly  impossible  to  sustain  this  con- 
demnation :  there  can  not  be  raised  money  enough  to 
pay  Mr.  Garrett. 

When  there  is  no  condemnation — when  it  fails— by 
reason  of  failure  to  i)ay  Mr.  Garrett  this  .$2,208.45— 
whence  is  derived  the  power  to  tax  Mr.  Smith  or  his 


Chap.  2]        Power  of  Eminent  Domain.  31 

lot?  The  power  to  tax  Mr.  Smith  and  his  property  is 
not  given  in  the  Constitution  in  express  teniis ;  a  jjower 
to  do  so  in  that  Constitution  ought  not  to  l>e  implied. 
The  framers  of  that  Constitution  never  intended  any- 
thing of  that  kind. 

The  St.  Louis  Charter  provided  that  the  jury  after 
first  ascertaining  the  "just  compensation"  to  each  tract 
taken  "without  reference  to  the    i)roposed     improve- 
ment," should  lu'oceed  to  ascertain  the  benefit  to  the 
public,  and  next  the  benefit  to  each  lot  and  the  owner. 
If  the  benefits  are  $500  to  the  public  and  $500  to  lots  and 
their  owmers,  the  condemnation  must  fail.    Is  there  any 
authority  for  the  tax?     The  question  is  a  question  of 
the  power  to  tax.    If  St.  Louis  had  the  power  to  tax 
Mr.  Smith  and  his  lot  and  did  so  tax  that  lot  and  Mr. 
Smith,  then  Mr.  Smith's  lot  has  gone  from  him  by  sale 
of  the  lot  and  the  city  gets  the  money  and  he  can  not 
get  the  money.    Besides,  Mr.  Smith  wants  his  lot  and 
not  the  money  it  sold  for.    Did  the  city  have  power  to 
sell  it?    Did  the  city  have  power  to  tax  it?    The  pur- 
chaser got  Mr.  Smith's  lot  and  St.  Lonis  got  the  money 
it  sold  for,  being  its  full  value,  both  under  false  pre- 
tenses.   The  purchaser  would  know  that  the  $1,000  tax 
could  not  pay  ^Nfr.  Garrett  $2,208.45,  and  consequently 
the  city  could  not  get  the  street  until  Mr.  Garrett  was 
paid  in  full.    The  city  could  not  nor  could  the  purchaser 
compel  Mr.  Garrett  to  compromise  at    forty    or   fifty 
cents  on  the  dollar.    The  city  got  this  money  and  the 
purchaser  got  Mr.  Smith's  lot  literally  under  false  pre- 
tenses.   The  law  never  intended  anything  of  that  kind. 
But  the  power  exercised  is  certainly  the  |)0wer  of  tax- 
ation so  far  as  Mr.  Smith  is  concerned,  and  the  ques- 
tion is  as  to  the  existence  of  the  power  and  not  of  the 
degree  to  which  it  may  be  exercised. 

But  it  may  be  said  that  this  tax  is  void  under  the 
tax  law  and  not  under  the  Constitution.     Under    the 


32  Law  of  Local  Taxation.  [Chap.  2 

statute  there  can  not  be  a  condemnation  or  tax.  The 
Constitution  authorized  the  condemnation:  the  statute 
did  not.  The  Constitution  authorized  the  tax  or  author- 
ized the  Legislature  to  enact  that  kind  of  tax  law. 

Now  let  us  change  the  law.  Here  are  the  facts 
(say): 

Mr.  Smith's  lot  before  the  improvement  was  worth 
$100.  All  the  lots  within  one  mile  of  the  improvement 
are  doubled  in  value  and  Mr.  Smith's  lot  becomes  worth 
$200,  and  then  Mr.  Smith's  lot  receives  a  sj^ecial,  pecul- 
iar, exceptive  benefit  over  and  above  all  lots  on  the 
street.  This  exceptive  benefit  is  (say)  $100.  The  gen- 
eral benefit,  the  original  value  of  the  lot  and  the  special 
benefit  make  $300.  Add  fifty  per  cent  to  the  original 
value  of  the  lot,  the  general  benefit  and  the  special  ben- 
efit makes  $450  against  Mr.  Smith  and  his  lot  and  the 
public  benefit  added  ($500)  makes  $950. 

How  is  Mr.  Garrett  to  get  his  ' '  just  compensation ' ' 
($2,208.45)  out  of  this  $950!  It  is  short  $1,258.45;  so 
the  statute  will  authorize  an  additional  tax  on  Mr. 
Smith 's  lot,  making  the  total  tax  on  Mr.  Smith  and  his 
lot  $1,708.45,  and  the  city  tax  for  five  hundred  for  the 
city's  benefit  makes  $2,208.45.  The  statute  in  form  au- 
thorizes this  tax  of  $1,708.45  on  Mr.  Smith  and  his  lot, 
and  if  the  statute  has  constitutional  authority  to  sup- 
port it,  there  is  no  way  for  Mr.  Smith  to  evade  that 
tax.  So  his  lot  must  be  sold.  There  is  no  way  known  to 
Mr.  Garrett  or  Mr.  Smith  or  to  the  Constitution  or  the 
law  by  which  any  one  can  compel  a  bidder  to  go  to 
that  sale  and  bid  for  that  lot  and  pay  $1,708,45  for  the 
lot.  Some  one  bids  $200  being  100  per  cent  of  the  origi- 
nal value  of  the  lot  and  100  per  cent  of  the  benefit,  the 
special  peculiar  benefit,  and  the  sheriff  makes  a  deed  to 
the  purchaser,  and  Mr.  Garrett  is  short  $1,508.45  on  his 
"just  compensation"  of  $2,208.45.  So  Mr.  Garrett 
keeps  his  lot  till  this  "jusf  compensation"  ($2,208.45) 


Chap.  2]         Power  of  Eminent  Domain.  33 

is  paid  to  liim  or  into  court  for  him  as  owner.  The 
purchaser  got  Smith's  lot  and  tlie  city  got  the  money  it 
sold  for,  both  under  false  jn-etenses  and  both  ought  to 
go  to  the  penitentiary  for  it. 

It  is  ti'ue  that  it  may  not  ha])pen  that  $200  will  be 
the  only  bid:  It  may  be  true  it  is  not  likely  to  happen; 
it  is  true  it  may  not  happen  that  $1,708.45  will  not  be 
bid  for  Mr.  Smith's  lot.  It  is  true  that  it  is  not  likely 
to  happen.  "It  is  true  it  is  not  likely  to  ha])i)en,  but  the 
fact  that  it  may  possibly  hai)pen  is  enough  to  condemn 
the  law"  {City  of  St.  Louis  to  use  v.  Allen,  53  Mo.  44, 
1.  c.  55,  A.  D.  1873). 

There  never  was  a  power  to  take  Mr.  Garrett's 
land  without  first  paying  Mr.  Garrett  his  "just  com- 
pensation" ($2,208.45). 

It  is  said  in  Neicby  v.  Platte  County,  25  Mo.  258, 
at  264,  that  hero  is  exercised  both  powers  of  govern- 
ment in  the  same  breath :  first,  eminent  domain,  under 
which  Mr.  Garrett's  land  is  taken  and  just  compensa- 
tion paid ;  second,  taxation  to  pay  Mr.  Garrett.  But  if 
Mr.  Garrett's  compensation  is  not  paid,  all  parties  get 
out  of  breath  before  taxation  is  reached.  Either  Mr. 
Garrett  must  lose  his  land  and  get  nothing  for  it  or 
Mr.  Smith  must  lose  his  land  and  get  nothing  for  it. 
With  Mr.  Garrett  the  power  exercised  is  named  "emi- 
nent domain;"  with  Mr.  Smith  the  power  exercised  is 
named  "taxation." 

In  Louisiana  (S-  Frankford  Plank  Road  Company 
V.  Pickett,  25  Mo.  535,  1.  c.  537,  the  court  below  gave 
this  instruction  held  to  be  erroneous  and  occasioning 
a  reversal  of  the  judgment:  "The  jury  shall  go  upon 
the  land  over  which  the  road  is  ]n'oposed  to  run,  and 
shall  assess  the  damages  sustained  by  said  Pickett,  tak- 
ing into  consideration  the  advantages,  if  any  which  said 
road  may  l)e  to  said  Pickett,  and  the  jury  shall  make 
out  in  writing  their  verdict,"  etc.    Saj'^  the  court: 

3 


34  Law  of  Local  Taxation.  [Chap.  2 

*'The  instriiction  given  by  the  court  was  erroneous 
in  not  restricting  the  jury  to  such  direct  and  peculiar 
benefits  or  increase  of  value  as  were  occasioned  to  that 
part  of  Pickett's  land  not  taken  for  the  road  and  direct- 
ing them  to  discard  from  their  consideration  any  gen- 
eral benefit  or  increase  of  value  received  by  such  land 
in  common  with  other  lands  in  the  neighborhood.  This 
has  been  determined  to  be  the  proper  construction  of 
this  and  similar  statutes,"  referring  to  Neivhy  v.  Platte 
County,  25  Mo.  258,  and  Pacific  Railroad  v.  Chrystal, 
25  Mo.  544.  Judge  Richardson  dissents;  Judge  Scott 
occupies  one  extreme,  Judge  Richardson  the  opposite. 

From  the  very  terms  of  the  Constitution  the  owner 
of  proj^erty  taken  for  public  use  must  have  just  com- 
pensation. This  constitutional  provision  is  completely 
frustrated,  annulled,  obliterated  if  the  "just  compen- 
sation" may  be  taxed  one  hundred  per  cent,  or  if  the 
owner  may  be  personally  taxed  to  the  extent  of  one 
hundred  per  cent,  or  if  his  other  property  not  bene- 
fited be  taxed  in  an  amount  sufficient  to  pay  this  ''just 
compensation." 

If  the  whole  lot  is  taken  its  price  or  market  value 
is  his  "just  compensation."  This  is  the  exercise  of 
the  eminent  domain  power.  If  part  only  is  taken,  then 
the  remainder  may  be  left  in  such  form  and  condi- 
tion as  to  be  of  less  value.  The  additional  fencing 
needed,  the  inconvenient  shape  of  the  remainder  of 
the  land,  in  short,  "the  disadvantages,"  always  were 
considered  in  determining  the  owner's  just  compensa- 
tion. The  courts  are  bound  from  the  very  terms  of 
the  Constitution  to  consider  the  disadvantages.  Note 
the  peculiar  language  of  the  statute.  Courts  always 
took  into  consideration  the  value  of  the  land.  To  this 
they  added  the  disadvantages  to  the  remaining  land. 
Both  sums  make  up  the  constitutional  "just  compen- 
sation." "Just  compensation"  is  wanting  if  either  is 
left  out. 


Chap.  2]         Power  of  EiMinent  Domain.  35 

Now  the  lawmaker  adds  to  this  that  "The  com- 
missioners shall  take  into  consideration  the  advantages 
as  well  as  the  disadvantages  of  the  road  to  such  per- 
son," Wlien  the  commissioners  take  into  considera- 
tion the  advantages  they  exercise  the  taxing  power. 
"This  law  is,  indeed,  nothing  more  in  effect  than  the 
exercise  of  both  powers  of  government  in  the  same 
breath — that  of  taking  the  land  by  the  right  of  emi- 
nent domain,  and  of  requiring,  under  the  taxing  poiver, 
the  adjacent  landowners  to  contribute  to  the  cost  of  it 
in  proportion  to  the  benefit  each  will  derive  from  the 
road."  {Newhy  v.  Platte  County,  25  Mo.  loc.  eit.  264.) 
This  case  was  tried  on  an  agreed  statement  of  facts. 
One  and  one-half  acres  of  land  were  taken,  worth  fif- 
teen dollars  per  acre.  This  was  the  exercise  of  eminent 
doni/ain.  There  is  no  suggestion  of  error  in  its 
exercise,  Newby  lost  his  land  and  got  neither 
money  nor  benefits.  There  was  no  evidence  of  benefits : 
no  admission  of  benefits.  There  must  be  evidence  of 
benefits  in  the  exercise  of  this  tax-power  and  if  no 
benefit  be  found  there  can  be  no  tax;  no  withholding  of 
this  $22.50  from  Mr.  Newby.  The  case  was  remanded 
for  a  new  trial  and  the  court  below  told  in  plain  terms 
that  this  benefit  must  he  a  peculiar  excej^tional  l>enefit, 
one  accruing  to  Newby  not  enjoyed  by  the  commuuit}" 
at  large,  or  by  other  property  in  the  vicinity  or  neigh- 
borhood. He  is  just  as  much  entitled  to  these  general 
benefits  as  any  other  ]ierson  in  the  conununity.  This 
$22.50  must  not  be  taken  from  Mr.  Newby  by  any  sup- 
posed benefit  or  advantage.  The  court  below  was  ad- 
monished that  in  the  new  trial  to  be  had  no  ])aii:  of 
this  $22.50  should  be  withheld  from  ^Nfr.  Newby  by  any 
supposed  advantage.  The  tax  power  can  not  thus  with- 
hold or  (which  is  the  same  thing)  take  this  $22.50  un- 
less there  is  on  the  other  side  of  the  account  its  exact 
equivalent.      Instruct  these  commissioners  when  they 


36  Law  of  Local  Taxation.  [Chap.  2 

retry  this  case  that  they  can  no  more  take  or  withhold 
this  $22.50  without  just  compensation  than  they  can 
take  or  withhold  his  land  without  just  compensation. 
"\Mien  you  consider  the  question  of  benefits  you  exer- 
cise the  taxing  j^ower  and  in  exercising  this  taxing 
power  you  must  not  take  this  $22.50  unless  its  exact 
ecjual  is  in  the  remaining  land  in  the  form  of  this  spec- 
ial peculiar  exceptive  benefit.  The  law  for  this  particu- 
lar kind  of  taxation  which  withholds  this  $22.50  from 
Mr.  Newby  or  takes  it  from  him  must  be  in  accordance 
with  the  provision  of  the  Constitution  that  "Private 
property  shall  not  be  taken  for  public  use  without  just 
compensation."  Here  the  taxing  power  is  the  offending 
power.  It  is  no  more  so  than  in  Wells  v.  Weston^  22 
Mo.  384,  or  Loan  Association  v.  TopeTxa,  20  Wall.  655. 
"We  have  not  as  yet  (A.  D.  1857)  many  miles  of 
railway,  nor  has  the  great  body  of  land  in  the  interior 
yet  attained  great  value.  By  restricting  the  benefits, 
which  the  Legislature  have  declared  may  be  set-off 
against  the  value  of  land  taken  for  a  public  improve- 
ment, to  such  as  are  peculiar  to  the  landowner  and  not 
shared  by  others  whose  land  is  not  taken  equally  with 
him,  growing  dissatisfaction  with  existing  legislation 
will  probably  be  checked.  It  is  evident  that  the  advan- 
tages or  benefits  sjjoken  of  must  have  some  limit.  If 
the  owner  of  land  on  the  line  of  a  railroad,  part  of 
which  was  taken  for  the  road,  should  happen  to  own  an- 
other tract  half  a  mile  from  the  road,  the  benefits  which 
this  last  tract  would  receive  from  the  improvement 
would  not  be  considered ;  and  yet  such  increased  value 
of  this  second  tract  would  be  practically  and  in  fact  a 
benefit  remotely  derived  from  the  road.  But  the  Con- 
stitution intends  to  place  the  public  burdens  upon  all, 
and,  to  do  this,  pays  the  proprietor  of  land  for  what  is 
taken  by  the  public.  //  he  is  paid  in  advantages  ivhich 
the  community  at  large,  ivhose  land  is  not  taken,  enjoy 


Chap.  2]         Power  ok  Eminent  Domain.  37 

equally  nith  him.'^elf,  the  spirit  of  the  provision  might 
he  said  to  be  violated.  His  loss  is  certain  and  specific, 
and  in  relation  to  the  land  ivhiih  is  not  taken,  he  only 
receives  the  same  benefit  irhich  others  receive  icho 
have  sustained  no  loss."  \ Garrett  v.  St.  Louis,  25  Mo. 
loc.  c'it.  512.] 

On  the  question  as  to  wliat  power  of  government  is 
exercised,  whether  the  taxing  power  or  eminent  do- 
main, the  court  (page  514)  say: 

'*AVhen  such  ]iersons  [those  whose  land  is  taken  in 
part  and  a  part  left]  are  assessed  it  can  only  be  under 
the  taxing  power,  since  the  power  of  eminent  domain 
0|>erates  only  on  individuals  and  without  reference  to 
the  amount  or  value  exacted  from  any  other  individ- 
uals or  class  of  individuals;  but  taxation  'operates 
upon  a  community  or  upon  a  class  of  persons  in  a  com- 
munity, and  by  some  rule  of  apportionment.'  AMien, 
therefore,  it  is  clear  that  this  assessment  upon  one 
class  of  lot-holders  is  an  exercise  of  the  taxing  power, 
there  is  no  reason  why  it  should  not  be  held  to  be  an 
exercise  of  the  same  poAver  upon  the  other  class,  whose 
lots  are  taken  under  the  i)ower  of  eminent  domain,  and 
paid  for  according  to  their  exact  value." 

The  court  might  pro]ierly  have  added  the  words, 
''by  the  tax  levied."  If  the  owner  of  land  is  paid  in  gen- 
eral advantages,  private  property  has  been  taken  for 
public  use  without  just  compensation.  The  compensa- 
tion is  ascertained  and  then  in  ]ilace  of  being  paid,  it  is 
withheld  on  this  ])lea  of  a  set-off  of  general  benefits. 
The  plea  of  set-off  is  not  a  traverse ;  it  is  a  confession 
and  avoidance.  It  admits  just  compensation  and  it 
seeks  to  avoid  it  by  this  ]ilea  of  set-off  of  benefits  or  ad- 
vantages. Newby  (in  Neu-hy  r.  Platte  County)  got  nei- 
ther cash  nor  benefits.  Hence  in  remanding  the  case  the 
court  directed  the  court  below  to  allow  only  these  spec- 
ial peculiar  benefits.  The  county  admits  it  owes  Xcwby 


38  Law  of  Local  Taxation.  [Chap.  2 

$22.50  for  the  land  taken  and  the  burden  of  proof  is  on 
the  county  to  prove  this  plea  of  discharge.  There  must 
be  pa^Tuent  of  this  $22.50  by  (1)  all  cash,  or  (2)  part 
cash  and  the  balance  in  benefits,  or  (3)  all  benefits.  This 
taxation  power  cannot  be  exercised  unless  there  be 
(and  the  court  must  so  find)  special  peculiar  benefits 
not  common  to  other  property  in  the  neighborhood. 
"The  advantages  of  the  road  to  such  person,"  is  the 
language  of  the  statutes.  An  advantage  to  the  whole 
community  is  an  advantage  to  him.  Everybody's  land, 
including  Newby's,  is  doubled  in  value.  That  is  an  ad- 
vantage to  Newby.  But  why  make  Mr.  Newby  pay  for 
doubling  the  price  of  all  the  land  in  the  neighborhood? 
That  is  the  tax  levied.  If  the  law  can  compel  him  to 
pay  part,  it  may  compel  pajmient  of  all. 

If  he  has  to  pay  for  public  work  that  doubles  the 
sale  value  of  all  his  land  in  common  with  all  the  other 
land  in  the  neighborhood,  it  is  wholly  immaterial  with 
Mr.  Xewby  whether  a  list  shall  be  made  of  all  his  real 
estate  and  personal  property  and  the  value  thereof  as- 
certained, and  then  take  a  certain  per  cent  of  that 
value  and  make  him  pay  that,  or  ascertain  the  quantity 
of  his  land  or  the  frontage  on  the  road  or  the  number  of 
his  horses  or  cows,  and  then  make  him  pay  according  to 
the  value  of  his  land  or  its  frontage  or  the  number  of 
his  cows  or  horses  or  wagons,  or  their  value.  In  re- 
manding this  cause  to  the  court  below,  the  Suprem^e 
Court  of  Missouri  undertake  to  direct  the  court  below 
that  in  the  new  trial  of  this  cause  Mr.  Newby  must  not 
be  robbed  either  by  the  front  foot  of  his  property  or  by 
the  acre,  or  according  to  the  value  of  his  property,  or 
according  to  the  number  or  value  of  his  cows  or  horses. 
It  is  the  fact  of  robbery  (or  taking  private  property  for 
public  use  without  just  compensation)  and  not  the 
method  of  doing  it  that  the  Supreme  Court  direct  the 
lower  court  to  avoid  in  the  new  trial  of  the  case.  Newby 


Chap.  2]         Power  of  Eminent  Domain.  39 

owned  tliis  land.  He  owned  its  exact  equivalent,  this 
$22.5^).  It  was  the  taxing  power  that  witliliold  the 
money  or  took  the  nioiiey  hy  withholding  it  from  him. 
The  public  can  no  more  take  this  money  for  publie 
use  without  just  compensation  than  it  can  take  the 
land.  The  taxing  power  takes  this  $22.50  without  giv- 
ing anything  in  return  for  it.  The  case  was  tried  on 
an  agreed  statement  of  facts.  There  was  no  evidence 
of  benefits.  Hence  the  reversal  of  the  judgment.  The 
case  was  tried  on  an  agreed  statement  of  facts.  "But 
it  was  not  admitted  that  the  road  was  any  benefit  to 
the  party  and  the  court  we  think  could  not  infer  this 
as  a  mattei-  of  law  from  the  agreed  facts."  [S.  C, 
Neubi/  r.  Platte  County,  25  ]\Io.  275.] 

That  benefit  is  a  conclusive  presumption  of  law 
now.  The  evidence  not  offered  in  Neivhy  v.  Platte 
County  is  wholly  incompetent  now. 

In  Garrett  v.  St.  Louis^  St.  Louis  withheld  $763,  a 
benefit  tax,  as  a  set-off  to  the  value  of  the  land  taken 
in  part  and  in  part  left.  That  amount  was  estimated 
as  a  benefit  to  the  part  left.  It  was  deducted  from  his 
$2,208.45,  his  "just  compensation."  There  can  be  no 
tax  of  this  kind  unless  there  is  a  benefit  and  that  ben- 
efit must  not  be  a  general  l^enefit  in  common  with  other 
like  proi)erty  in  the  neighborhood,  but  it  must  be  spec- 
ial, peculiar,  exceptive.  To  have  charged  Garrett  with 
general  benefits  would  have  done  violence  to  that  rule 
of  constitutional  law  that  "]>rivate  property  shall  not 
be  taken  for  public  use  without  just  comi)ensation. "  If 
the  public  had  taken  all  of  Garrett's  land,  the  public 
would  have  been  bound  to  pay  Mr.  Garrett  $2,208.45, 
and  the  l)enefits  to  other  lands  would  have  been  taken 
into  consideration.  The  land  on  account  of  which  $763 
was  deducted  from  the  whole  compensation  ($2,208.45) 
now  the  property  of  ]\[r.  Smith,  will  be  assessed  with 
$763.     Mr.  Smith  with  others  contributes  to  make  ui> 


40  Law  of  Local  Taxatiott.  [Chap.  2 

this  amount.  If  there  be  no  benefit  to  Mr.  Smith's  land 
of  the  special  character  required,  and  Mr.  Smith  be 
compelled  to  pay,  the  public  has  received  from  Mr. 
Smith  $763  without  giving  him  anything  for  it.  The 
public  has  robbed  Smith  to  pay  Garrett.  It  would  have 
been  as  well  to  have  robbed  Garrett  at  the  start  by  not 
paying  him  for  the  land  or  by  taking  all  his  compensa- 
tion from  him  or  by  withholding  all  or  part  of  it.  The 
public  took  Smith's  $763,  or  his  land  or  his  cattle  or 
any  other  pro])erty,  to  pay  ^\v.  Garrett  for  his  land 
for  this  street.  Smith  got  nothing  for  it  and  now  the 
public  on  like  principle  will  be  compelled  to  take 
Jones'  cattle  to  pay  Smith.  So  the  robbery  has  no  end. 
The  power  that  takes  is  the  taxing  power.  The  power 
that  offends  is  the  taxing  power. 

Suppose  a  third  party  (Smith)  had  owned  this 
part  of  Mr.  Garrett's  land  not  taken  for  the  street  and 
on  account  of  which  seven  hundred  and  sixty-three  dol- 
lars was  deducted  on  account  of  sper^ial  benefits.  Here, 
then,  is  a  tax  on  Mr.  Smith's  land.  Is  there  here  any 
possibility  for  any  one's  property  to  be  taken  from  him 
without  an  equivalent  being  paid  for  it?  If  Smith's 
land  is  not  worth  the  tax,  as  before  stated  herein,  and 
if  the  land  shall  sell  for  what  it  is  worth,  then  Mr.  Gar- 
rett will  not  get  his  just  compensation  and  his  proiv 
erty  will  have  been  taken  for  public  use  without  just 
compensation,  and  Mr.  Smith's  land  will  have  been 
sold  for  full  value  and  he  get  nothing  for  it.  The  lanu 
of  both  parties  has  been  eifectually  taken.  If  Smith's 
land  be  worth  $763,  and  sell  for  its  value,  then  Mr. 
Garrett  loses  his  land  but  gets  full  "just  compensa- 
tion." Smith  loses  his  land,  gets  nothing  for  it,  and 
the  tax  on  Smith's  land  would  be  unconstitutional  if 
there  was  only  a  general  benefit  to  the  land  of  Smith. 
Is  it  a  constitutional  tax  if  the  general  benefit  is  want- 
ing? The  courts  say  No.  Is  it  a  constitutional  tax  if 
there  be  a  general  damage?     The  courts  now  say  Yes. 


Chap.  2]         Power  of  Eminent  Domain.  41 

It  is  idle  to  say  Mr.  Smith's  land  has  not  l>eGn 
taken.  It  is  idle  to  say  his  property  has  not  been  taken, 
in  view  of  the  fact  that  lie  has  no  possession  or  right 
to  possession  of  the  land  and  no  right  of  property  in 
it,  and  he  lias  no  possession  of  the  money  the  land  sold 
for,  and  no  right  to  such  possession. 

"What  benefit  is  this  express  constitutional  restric- 
tion to  any  property-owner  if  there  be  an  implied  power 
of  local  taxation  to  completely  nullify  it?  In  one  case 
the  public  take  the  land  by  eminent  domain  without  giv- 
ing anything  for  it,  and  in  the  other  the  public  take 
the  money  by  taxation  without  giving  anything  for  it. 
Moreover,  taxes  may  be  made  payable  in  kind  or  in 
property,  as  well  as  in  money,  in  the  absence  of  any 
special  restriction  in  the  Constitution  to  that  effect. 
This  is  well  reasoned  in  Lane  County  v.  Oregon,  7  Wal- 
lace 71. 

"Xow  to  the  existence  of  the  States,  themselves 
necessary  to  the  existence  of  the  United  States,  the 
power  of  taxation  is  indispensable.  It  is  an  essential 
function  of  government.  It  was  exercised  by  the  Colo- 
nies; and  when  the  Colonies  became  States,  both  be- 
fore and  after  the  formation  of  the  Confefleration,  it 
was  exercised  by  the  new  governments.  Under  the 
articles  of  Confederation  the  government  of  the  United 
States  was  limited  in  the  exercise  of  this  power  to  req- 
uisitions upon  the  States,  while  the  whole  power  of  di- 
rect and  indirect  taxation  of  persons  and  pro|3erty, 
whether  by  taxes  on  polls,  or  duties  on  imports,  or  du- 
ties on  internal  ]iroduetion,  manufacture,  or  use,  was 
acknowledged  to  belong  exclusively  to  the  States,  with- 
out any  other  limitation  than  of  non-interference  with 
certain  treaties  made  by  Congress.  The  Constitution, 
it  is  true,  greatly  changed  this  condition  of  things.  It 
gave  the  power  to  tax,  both  directly  and  indirectly,  to 
the  national  govemment  and  subject  to  the  one  i^rohibi- 


42  Law  of  Local  Taxation.  |  Chap.  2 

tion  of  any  tax  upon  exports  and  to  the  conditions  of 
uniformity  in  respect  to  indirect  and  of  proportion 
in  resi)ect  to  direct  taxes,  the  power  was  given  with- 
out any  express  reservation.  On  the  other  hand,  no 
power  to  tax  exports  or  imports,  except  for  a  single 
purpose  and  to  an  insignificant  extent,  or  to  lay  any 
duty  on  tonnage,  was  permitted  to  the  States.  In  re- 
spect, however,  to  property,  business,  and  persons, 
within  their  respective  limits,  their  joower  of  taxation 
remained  and  remains  entire.  It  is  indeed  a  concurrent 
l^ower,  and  in  case  of  a  tax  on  the  same  subject  by  both 
governments,  the  claim  of  the  United  States  as  the  Su- 
preme authority  must  be  preferred ;  but  with  this  quali- 
fication it  is  absolute.  The  extent  to  which  it  shall  be 
exercised,  the  subjects  upon  which  it  shall  be  exercised 
and  the  mode  in  which  it  shall  be  exercised,  are  all 
equally  within  the  discretion  of  the  legislatures  to 
which  the  States  commit  the  exercise  of  the  power. 
That  discretion  is  restrained  only  by  the  will  of  the 
people  expressed  in  the  state  Constitution  or  through 
elections,  and  by  the  condition  it  must  not  be  so  used 
as  to  burden  or  embarrass  the  operation  of  the  national 
government.  There  is  nothing  in  the  Constitution 
which  contemplates  or  authorizes  any  direct  abridg- 
ment of  this  power  by  national  legislation.  To  the  ex- 
tent just  indicated  it  is  as  complete  in  the  States  as  the 
like  power,  within  the  limits  of  the  Constitution,  is  com- 
plete in  Congress.  If,  therefore,  the  condition  of  any 
State  in  the  judgment  of  its  legislature,  requires  the 
collection  of  taxes  in  hind,  that  is  to  say,  by  the  deliv- 
er^^  to  the  proper  officers  of  a  certain  proportion  of 
products,  or  in  gold  or  silver  bullion,  or  in  gold  and 
silver  coin,  it  is  not  easy  to  see  upon  ivhat  principle  the 
national  legislature  can  interfere  with  the  exercise,  to 
that  end,  of  this  power,  original  m  the  States,  and  never 
as  yet  surrendered."    {Lane  v.  Oregon,  7  Wallace  71.] 


Chap.  2]         Power  of  Eminent  Domain.  43 

This  oi)inion  is  referred  to  and  approved  iii'  Hagar 
V.  Reclamation  District,  111  U.  S.  701,  at  707,  top,  where 
the  court  say : 

"It  was  tJie  right  of  each  State,  to  collect  its  taxes 
in  such  material  as  it  might  deem  expedient,  either  in 
kind,  that  is  to  say  by  a  certain  proportion  of  prod- 
ucts," etc.,  as  above  quoted. 

The  writer  is  not  aware  of  any  ))rovision  of  the 
state  Constitutions  in  terms  requiring  taxes  to  be  pai<l 
in  money  further  than  that  all  property  shall  be  taxed 
in  proportion  to  value,  a  provision  not  applicable  to  lo- 
cal taxes.  If  the  tax  may  be  levied  dischargeable  in 
kind,  wihy  not  make  it  dischargeable  in  gold  coin,  or 
silver  coin,  in  gold  Imllion  or  silver  bullion,  in  gold  bars 
or  silver  bars  or  copper  bars,  or  in  labor,  sand,  lime, 
and  cement.  People  in  the  rural  districts  have  been 
bound  to  pay  road  tax  in  labor  ever  since  we  acquired 
Louisiana. 

If  a  street  is  to  be  widened,  why  not  authorize  a  tax 
of  five  feet  on  each  side  of  the  street  payable  in  kind. 
Why  not  make  it  payable  in  this  ''just  compensation" 
of  tiie  Constitution,  and  thereby  totally  nullify  the  con- 
stitutional restriction.  Taxation  is  a  necessarv'  power 
of  government,  but  that  power  may  be  restricted.  It 
is  said  to  be  necessary,  nevertheless  it  is  restncted.  It 
was  not  the  intention  of  the  framers  of  the  Constitution 
to  restrict  the  power  of  taxation  only  when  taxation 
was  unnecessary.  The  restriction  may  apply  to  a  nec- 
essary tax.  How^ever  necessary  the  tax  may  ]>e,  the 
State  can  not  tax  imports  or  exports.  The  state's  Leg- 
islature should  not  be  al>lo  to  frame  a  law  wliiHi  will 
in  effect  destroy  constitutional  restrictions. 

With  the  judicial  construction  now  adopted  the 
constitutional  restriction  should  read  thus:  ''Private 
property  shall  not  be  taken  for  public  use  without  just 
compensation,  except  in  the  exercise  of  the  ]iower  of  lo- 


44  Law  of  Local  Taxation.  [Chap.  2 

eal  taxation,  or  in  the  exercise  of  some  other  govern- 
mental power,  or  unless  the  Legislature  deem  it  neces- 
sarij." 

Tithes  under  the  English  law  were  nothing  more 
nor  less  than  a  tax  payable  in  kind.  Tithes  (says 
Blackstone  in  book  2,  chap.  3,  subdivision  11)  ''Are 
defined  to  be  the  tenth  part  of  the  increase  yearly  aris- 
ing and  renewing  from  the  profits  of  lands,  the  stock 
upon  lands,  and  the  |3ersonal  industry  of  the  inhabi- 
tants ;  the  first  species  being  usually  called  praedial  as 
of  corn,  grass,  hops  and  wood;  the  second  mixed,  as  of 
wool,  milk,  pigs,  etc.,  consisting  of  natural  products, 
but  nurtured  and  preserved  in  part  by  the  care  of 
man,  and  of  these  the  tenth  must  be  paid  in  gross; 
the  third,  personal  as  of  manual  occupations, 
trades,  fisheries  and  the  like ;  and  of  these  only  the  tenth 
part  of  the  clear  gains  and  profits  is  due." 

The  reader  will  notice  that  the  English  law  took 
one  tenth  in  kind  and  that,  too,  in  gross.  Personal  tithes 
were  an  exception,  but  they  yielded  nothing  if  returns 
had  to  be  made.  There  would  be  nothing  net  if  human 
nature  was  then  as  now,  and  if  we  may  give  credence 
to  the  sermon  at  Stamford  by  Latimer,  the  refonner. 

"All  property  subject  to  taxation  shall  be  taxed  in 
proportion  to  its  value,"  does  not  require  the  Legisla- 
ture to  tax  all  property.  Without  this  provision  it 
could  tax  horses  and  exempt  mules.  The  Legislature 
could  determine  the  property  to  be  taxed.  Tt  could 
leave  all  other  property  untaxed.  But  if  the  Legisla- 
ture does  select  any  particular  property  for  taxation 
then  the  taxation  must  he  according  to  value.  St. 
George's  Church  in  St.  Louis  had  this  exemption  from 
general  taxation  {Lochvood  v.  St.  Louis,  20  Mo.  20,  at 
22-3).  But  it  was  not  exempted  from  this  sewerage 
tax.  Many  exemptions  from  taxation  are  to  be  met 
with,  but  they  seem  to  cover  general  taxes.    They  seem 


Chap.  2]         Power  of  Eminent  Domain.  45 

not  broad  enough  to  cover  special  local  taxes  where  the 
money  is  expended  for  the  benefit  of  the  property  taxed. 
In  the  absence  of  any  special  limitation  to  the  contrary 
in  the  state  Constitution  the  Legislature  is  not  bound 
to  tax  all  property ;  it  is  not  bound  to  subject  all  prop- 
erty to  taxation  {State  v.  North  &  Scott,  27  Mo.  464, 
loe  cit.  483).  The  opinion  in  chief  and  the  dissenting 
opinion  agi-ee  in  this  (loc.  cit.  491) : 

"It  is  admitted  that  the  State  may  tax  slaves  and 
omit  to  tax  land ;  that  the  State  may  tax  four-year-old 
cattle  and  exempt  all  under  that  age  from  taxation; 
that  horses  may  be  taxed  and  mules  be  left  untaxed." 
In  any  case  where  land  is  condemned  for  public  use, 
then,  the  condemnation  money  (the  just  compensation 
of  the  Constitution)  may  be  taxed  and  all  other  prop- 
erty be  left  untaxed.  The  taxing  authority  is  not  gov- 
erned by  the  Constitution  in  local  taxes,  certainly  not 
as  to  rates.  The  rule  of  constitutional  law  was  that 
"all  property  subject  to  taxation  shall  be  taxed  in  pro- 
portion to  its  value."  This  does  not  mean,  never  did 
mean,  that  all  property  shall  be  taxed  or  that  all  i^rop- 
erty  is  subjected  to  taxation.  The  meaning  is  "That 
all  property  subjected  to  taxation  shall  be  taxed  in  pro- 
portion to  its  value."  "Subject"  means  "subjected," 
and  the  power  that  "subjects  to  taxation"  is  the  legis- 
lative power.  We  have  no  common-law  tax  in  this 
country. 

Egyptian  Levee  Company  v.  Hardin,  27  Mo.  495, 
is  a  case  where  the  landowners,  in  a  district  of  country 
subject  to  overflow,  are  organized  into  a  corporation 
for  the  purpose  of  draining  their  lands,  each  landowner 
voting  one  vote  for  every  forty  acres  he  may  own,  and 
thus  the  officers  are  selected.  Then  for  draining  the 
land  the  board  of  directors  levy  a  special  tax  of  one 
dollar  per  acre,  and  if  not  paid  it  is  recoverable  by  ac- 
tion of  debt  or  its  equivalent  action.     ' '  The  charter  so 


46  Law  of  Local  Taxation.  [Chap.  2 

far  as  it  autliorized  a  tax  per  acre  is  unconstitutional," 
is  the  argument  of  the  appellant  landowners. 

AVhether  this  tax  law  would  "take  private  proper- 
ty for  public  use  without  just  compensation,"  if  there 
was  no  general  benefit  or  special,  peculiar,  exceptive 
benefit,  was  not  discussed  or  considered  or  decided.  Af- 
ter remarking  that  this  kind  of  taxation  is  special,  pe- 
culiar, local  and  that  the  constitutional  restriction  "All 
property  subject  to  taxation  shall  be  taxed  in  propor- 
tion to  value,"  was  intended  to  apply  to  general  taxa- 
tion for  state  or  county  or  city  purposes,  the  court  says : 
"These  local  assessments  (page  496)  are  not  necessar- 
ily, under  our  Constitution,  apportioned  by  reference 
to  the  value  of  the  property  assessed,  but  may  be  regu- 
lated by  the  value  of  the  benefit  which  the  improvement 
to  which  the  money  is  devoted,  is  expected  to  confer  on 
the  proprietor." 

It  is  said  that  this  tax  "ought  to  be  according  to  the 
value  of  the  benefit  to  be  derived. ' '  The  defense  was 
"That  the  act  of  the  Legislature  was  unconstitutional 
because  the  land  was  taxed  hy  the  acre  and  not  in  pro- 
portion to  its  value." 

The  same  learned  judge  had  one  year  before  ren- 
dered the  opinion  in  Garrett  v.  St.  Louis,  wherein  the 
court  lay  down  a  limitation  on  this  taxing  power  not 
contained  in  the  words  of  the  statute  conferring  the  au- 
thority. "It  is  evident  that  the  advantages  spoken  of 
must  have  some  limit."  In  the  exercise  of  this  taxing 
power  benefits  must  have  some  limit.  General  bene- 
fits or  public  benefits,  any  benefit  not  exceptive,  local, 
peculiar,  must  not  be  considered  in  exercising  this  tax- 
ing power.  If  these  general  benefits  are  taken  into  the 
account,  then  in  the  exercise  of  this  taxing  power  there 
is  a  violation  of  the  rule  of  constitutional  law  ])rohib- 
iting,  "taking  private  property  for  public  use  without 
just  compensation." 


Chap.  2]        Power  of  Eminent  Domain.  47 

The  word  *' taxes"  means  burdens,  charges  or  iinr 
positions  put  or  set  ui)on  persons  or  property  for  pub- 
lic uses,  and  this  is  the  definition  which  Lord  Coke 
gives  to  the  word  ''talliage"  (2  Coke  Inst.  532),  and 
Lord  Holt,  in  C^ai-th.  438,  gives  the  same  definition  in 
substance  of  the  word  "tax."  To  pay  for  the  opening 
of  a  street  in^  a  ratio  to  tlie  benefit,  or  advantage  de- 
rived from  it,  is  no  burden.  It  is  no  "talliage"  or 
*'tax,"  within  the  meaning  of  the  exemption. 

*'The  charter  of  the  levee  company  rec|uires  the 
tax  to  be  regulated  by  the  number  of  acres  and  not  their 
value.  This  u])on  first  impression  might  carry  the  a]> 
pearance  of  injustice,  but  it  is  not  very  easy  to  see  from 
all  tlie  facts  disclosed  in  the  record  of  this  case  that  any 
practical  injustice  has  been  done"  (page  499). 

The  question  below  and  in  the  Supreme  Court  was 
a  ciuestion  of  power.  Did  the  power  exist?  Was  the 
statute  conferring  the  power  consistent  with  the  Con- 
stitution? From  this  record  it  does  not  appear  that  the 
land  was  benefited  or  damaged.  That  question  was 
not  before  the  court ;  it  was  not  raised  by  court  or  coun- 
sel. 

''Indeed,  it  is  quite  apparent  that  a  taxation  upon 
value  and  not  (juantity  would  in  the  hypothesis  stated 
produce  great  inequality.  The  burden  would  not  be  dis- 
tributed in  proportion  to  the  benefit."  It  seems  that 
there  is  somewhere  an  obligation  to  distribute  this  bur- 
den in  proportion  to  the  benefit.  Nenhy  r.  Platte  Coun- 
ty and  Garrett  v.  St.  Louis  are  certainly  not  intended 
to  be  overruled. 

Mr.  Hardin  did  not  resist  this  tax  in  the  court  be- 
low or  in  the  Suiireme  Court  on  the  constitutional 
ground  that  this  tax  law  took  his  projierty  for  public 
use  without  just  compensation.  The  objection  urged 
was  that  here  property  is  taxed  by  the  acre  (not  ac- 
cording to  value  as  required  by  the  Missouri  Constitu- 


48  Law  of  Local.  Taxation.  [Chap.  2 

tion).  The  decision  was  that  the  provision  did  not  ex- 
tend to  local  taxation,  but  only  to  general  taxes  for  the 
State  or  county,  town  or  city. 

The  first  street-i^aving  tax  case  to  come  before  the 
Supreme  Court  of  Missouri  was  that  of  CHij  of  St.  Jo- 
seph V.  Anthony,  30  Mo.  537  (A.  D.  1860).  The  tax  was 
''according  to  the  frontage." 

"The  owners  of  the  lots  charged  therewith  shall 
be  bound  to  pay  said  costs  charged  like  liabilities  con- 
tracted by  themselves  and  may  be  sued  therefor  ac- 
cordingly." And  the  tax-bill  on  each  lot  is  a  lien  on 
that  lot.  The  act  incorj^torating  St.  Joseph  was  held 
unconstitutional  by  the  lower  court,  on  what  ground 
does  not  appear  from  the  opinion  except  by  vague  in- 
ference : 

"The  princii^al  point  on  which  this  case  is  brought 
here  has  been  several  times  before  this  court.  In  the 
case  of  Inhabitants  of  Palmyra  v.  Morton,  25  Mo.  594, 
and  Egyptian  Levee  Co.  v.  Hardin,  27  Mo.  495,  and 
Garrett  v.  St.  Louis,  25  Mo.  505,  the  question  was  dis- 
cussed and  determined. ' ' 

The  above  fifty  words  in  four  lines  is  the  whole 
opinion  on  the  subject.  But  the  decision  was  a  mere 
''hrutnm  fiilmen."  The  case  is  one  example  out  of 
thousands  where  constitutional  safeguards  are  disre- 
garded. Says  a  recent  writer  (James  M.  Gray,  on 
Limitations  of  Taxing  Power  and  Public  Indebtedness, 
A.  D.  1906,  sec.  1842,  p.  943) : 

' '  The  fact  is  that  the  practice  in  making  these  as- 
sessments grew  up  as  a  matter  of  public  convenience 
without  much  regard  to  constitutional  restrictions.  The 
courts  have  twisted  constitutional  theories  to  suit  the 
established  practice." 

The  first  Missouri  case,  cited  supra,  made  the 
property-owner  personally  liable  for  the  tax  without 
any  lien  on  the  land.     The  statute  gave  only  an  action 


Chap.  2]        Power  of  Eminent  Domain.  49 

of  debt.  The  second  case  is  decided  od  the  ground  tliat 
the  tax  is  a  benefit  to  the  extent  of  the  amount  of  it 
and  that  the  benefit  can  be  better  estimated  by  the  acre 
than  by  the  value,  and  the  third  is  not  considered  with 
reference  to  the  provision  of  the  Constitution  in  con- 
troversy in  this  and  similar  cases. 

**It  is  evident  that  the  advantages  or  benefits  must 
have  some  limit"  (Garrett  v.  St.  Louis,  25  Mo.  512). 
If  the  advantages  or  benefits  to  Garrett  must  have  some 
limits  to  avoid  infringement  of  the  constitutional  pro- 
vision that  "private  property  shall  not  be  taken  for 
public  use  without  just  compensation,"  then  the  same 
rule  applies  to  any  other  landowner  on  the  street,  no 
part  of  whose  land  is  taken  for  the  street. 

The  rule  that  sells  his  land  to  pay  a  benefit  which 
is  general,  not  special,  peculiar,  exceptive,  is  just  as 
inimical  to  the  rule  of  constitutional  law  in  question 
as  the  rule  that  withholds  part  of  his  "just  compensa- 
tion" or  condemnation  money  for  a  general  benefit  to 
that  part  of  the  land  not  taken,  or  that  sells  his  ad- 
joining land  to  pay  it. 

In  St.  Joseph  v.  Anthony,  if  the  iTile  of  law  had 
been  to  assess  the  cost  of  the  street-paving  on  the  ad- 
joining land  according  to  the  benefit,  then  the  benefits 
in  the  St.  Joseph  case  "must  have  had  some  limit" 
as  well  as  in  Garrett  v.  St.  Louis.  Then  to  sell  the  abut- 
ting land  in  the  St.  Joseph  case  for  general  benefits  con- 
ferred by  the  paving,  would  be  just  as  inimical  to  this 
rule  of  constitutional  law  as  to  retain  part  of  the  just 
compensation  due  to  Mr.  Garrett  or  to  sell  any  abut- 
ting laud  for  general  benefits. 

If  this  special  tax-law,  authorizing  the  levying  of 
a  special  tax  according  to  benefit,  infringes  the  rule  of 
constitutional  law  that  "private  property  shall  not  be 
taken  for  public  use  without  just  compensation,"  in 
cases  where  the  benefit  is  general,  will  it  be  a  less  in- 


50  Law  of  Local  Taxation.  [Chap.  2 

fringemeut  of  that  rule  if  tlie  same  amount  is  taken 
apportioned  according  to  value  or  according  to  front- 
age, or  by  the  acre  or  by  the  square  yard? 

In  condemnation  cases  it  is  general  constitutional 
law  tliat  the  "just  compensation"  required  by  the  Con- 
stitution may  be  diminished  by  these  special,  peculiar, 
exceptive  benefits  not  enjoyed  in  common  with  other 
landowners  in  the  vicinity.  This  just  compensation  is 
made  up  of  the  value  of  the  land  taken  and  damages 
to  the  remainder  of  the  land  not  taken.  So  far  no  power 
is  exercised  except  that  of  eminent  domain.  When  ben- 
efits or  advantages  are  considered,  then  the  power  of 
taxation  is  exercised.  The  power  that  ascertains  these 
special,  peculiar,  exceptive  benefits  and  deducts  them 
from  the  ''just  compensation"  of  the  owner  of  the  land 
taken  for  public  use,  is  the  taxing  power. 

If  in  place  of  deducting  these  advantages  or  ben- 
efits from;  the  ''just  compensation,"  they  be  made  a 
lien  or  charge  on  the  abutting  land  or  on  other  land  or 
other  property,  the  power  exercised  is  still  the  taxing 
power.  The  constitutional  provision  that  "All  prop- 
erty subject  to  taxation  shall  be  taxed  in  proportion  to 
its  value,"  does  not  apply  to  local  taxation.  For  gen- 
eral and  special  taxation  the  taxing  power  may  take 
one  hundred  per  cent.  No  constitutional  restriction 
as  to  rates  will  apply  to  special  taxes,  unless  so  ex- 
pressed in  very  plain  terms.  It  is  an  exemptioni  from 
taxation  to  be  strictly  construed  against  the  lotowiier, 
but  liberally  for  the  city  and  contractor.  In  Garrett  v. 
St.  Louis,  25  Mo.  505,  Garrett's  "just  compensation" 
was  assessed  at  $2,208.  The  public  can  not  acquire  title 
to  Mr.  Garrett's  land  without  paying  him  for  it.  The 
necessary  funds  can  be  obtained  only  by  taxation,  gen- 
eral or  special,  on  all  the  property  of  the  State,  or  on 
all  the  property  of  the  county,  or  on  all  the  property 
of  the  city.     The  legislative  power  is  restricted  in  tax- 


Chap.  2]         Power  of  E:\itxi:nt  I)o:\iain.  51 

ation  of  property;  it  must  be  according  to  value.  It  was 
not  (prior  to  1875)  restricted  as  to  rates  and  if  some 
other  constitutional  provision  does  not  prevent,  the  leg- 
islative power  may  tax  one  hundred  per  cent.  In  everA^ 
condemnation,  the  "just  compensation"  of  the  owner 
may  be  taken  by  taxing  it  one  hundred  per  cent. 

If  a  man  own  two  acres  of  land,  may  the  ])u]>li<' 
take  one  acre  at  its  value  ($100)  and  then  tax  the  $100 
one  hundred  ]>er  cent  to  pay  it,  or  sell  the  other  acre  to 
pay  it?  Sell  the  acre  not  taken  to  Smith  for  its  value 
(one  hundred  dollars)  and  pay  the  owner  his  "just 
compensation."  He  had  two  acres  of  land  worth  $200; 
now  he  has  no  land  and  only  one  hundred  dollars. 

What  prevents  the  State  from  o])ening  a  road 
through  all  the  lands  of  any  farming  district  and  as- 
certaining the  "just  compensation"  therefor,  and  then 
tax  the  adjoining  property  (damaged  though  it  may 
be)  to  pay  the  amount.  We,  indeed,  hold  our  real  es- 
tate by  a  mere  "rope  of  sand."  This  boasted  Consti- 
tution, indeed,  "Holds  the  word  of  promise  to  the  ear 
but  breaks  it  to  the  hope." 

This  "just  compensation"  must  in  all  cases  be  sub- 
ject to  be  taxed  the  same  as  all  other  property  in  the 
State.  If  the  road  be  made  a  state  burden,  then  this 
"just  compensation"  must  or  may  be  taxed  along  with 
all  other  property  of  the  State  in  pro])ortion  to  its 
value.  This  ''just  compensation"  may  in  like  manner 
be  subjected  to  a  county  tax  or  city  tax  for  a  like 
purpose.  The  whole  fund  necessary  to  pay  this  "just 
compensation"  may  be  raised  by  a  general  state  tax, 
or  general  county  tax,  or  general  city  tax.  If  the  leg- 
islative power  may  thus  tax  this  fund  to  a  small  degree, 
that  power  may  tax  it  to  a  large  degree  in  the  absence 
of  any  constitutional  restrictions  as  to  rate  or  per  cent 
(and  there  is  none  in  terms  in  local  taxation). 

The  express  rule  of  constitutional  law  that  "Pri- 


52  Law  of  Local  Taxation.  [Chap.  2 

vate  property  shall  not  be  taken  for  public  use  without 
just  compensation,"  controls  this  implied  rule  that  the 
power  to  tax  is  without  any  restraints  because  none  are 
expressed  "eo  nomine"  and  in  terms. 

Now  to  le\y  a  local  tax  is  unconstitutional  if  there 
is  a  general  benefit.  It  is  constitutional  to  levy  the 
same  tax  by  the  front  foot  even  if  there  be  a  damage. 

A  general  benefit  defeats  the  one  law  as  unconsti- 
tutional ;  a  general  damage  saves  the  other  as  being 
perfectly  constitutional. 


CHAPTER  3. 

PERSONAL  LIABILITY  FOR  A  LOCAL  TAX. 

"We  have  seen  in  the  foregoing  c'ha])ters  tliat  this 
inherent  power  of  taxation  is  limited  by  the  Constitu- 
tion. First,  we  have  this  express  limitation:  "All 
property  subject  to  taxation  must  be  taxed  in  propor- 
tion to  its  value."  We  have  seen  that  this  power  of 
taxation  is  further  limited:  A  state  statute  purporting 
to  authorize  a  city  or  town  to  tax  persons  or  property 
beyond  its  corporate  limits  is  void  as  an  authority  on 
the  ground  that  it  takes  private  property  for 
public  use  without  just  compensation  or  that  it 
takes  private  property  for  private  use.  We 
have  in  the  third  place  considered  the  taxation 
features  of  our  condenmation  laws  that  the  advan- 
tages as  well  as  tlie  disadvantages  shall  be  considered 
in  estimating  "just  compensation,"  and  that  a  statute 
allowing  a  deduction  from  this  "just  comjiensation"  of 
benefits  or  advantages,  general  in  their  character,  not 
special,  peculiar,  exceptive,  is  void,  because  as  a  tax- 
law  it  takes  private  property  for  public  use  without 
just  compensation.  We  come  now  to  a  fourth  limita- 
tion on  this  power  to  tax,  and  that  is  in  the  constitu- 
tional validity  of  a  law  imposing  a  ])ersonal  liability 
for  a  local  tax.  A  local  tax-law  imposing  a  personal 
liability  on  the  owner  of  property  is  invalid.  It  takes 
private  jiroperty  for  pnblic  use  without  just  compensa- 
tion. 

The  City  of  St.  Louis  to  the  use  of  Seihert  i\  Al- 
len, 53  Mo.  44,  is  a  case  wherein  the  personal  liability 

(53) 


54  Law  of  Local  Taxation.  [Chap.  3 

feature  of  statute  laws  for  local  taxation  is  considered. 
Suit  was  brought  to  enforce  the  collection  of  special 
tax-bills  for  macadamizing  the  Gravois  road  in  front  of 
the  property  of  defendant  Allen.  The  tax-bills  were 
made  a  charge  on  the  land  according  to  frontage  on  the 
road,  and  the  statute  in  form  authorized  a  personal 
judgment  against  the  owner  of  the  pro|)ertY.  The  court 
rendered  judgment  on  two  tax-bills  jointly  against  two 
lots  or  distinct  parcels  of  land,  thus  making  each  par- 
cel subject  to  a  lien  for  the  amount  of  both  tax-bills  in 
place  of  each  parcel  being  charged  only  with  its  share. 
So  much  of  the  judgment  as  was  a  lien  was  remitted, 
and  thereupon  a  personal  judgment  was  rendered 
against  Mr.  Allen.  After  an  unsuccessful  motion  for 
a  new  trial,  he  appealed. 

In  rendering  the  opinion,  the  court  observe  that 
in  City  of  St.  Louis  to  use  of  McGroth  v.  Clemmons,  36 
Mo.  467,  City  of  St.  Louis  to  use  of  Lolirum  v.  Coons, 
37  Mo.  44,  Fotvler  v.  City  of  St.  Joseph,  37  Mo.  228,  and 
Inhabitants  of  Palmyra  v.  Morton,  25  Mo.  593,  personal 
judgments  were  rendered  against  the  owners  of  the 
lands  taxed  under  statutes  in  form  authorizing  such 
judgments,  but  the  constitutional  power  to  authorize  a 
personal  judgment  was  never  discussed  or  decided.  The 
court  quote  from  Taylor  v.  Palmer^  31  Cal.  240,  thus : 

' '  To  say  that  the  owner  of  land  bordering  upon  an 
improved  street  can  be  made  personally  responsible  for 
the  payment  of  the  improvement,  is  equivalent  to  say- 
ing, that  his  entire  estate,  real,  personal  and  mixed 
whether  bordering  upon  the  street  or  remote  from  it, 
whether  benefited  or  not,  shall  be  held  responsible  for 
the  tax." 

After  some  observations  as  to  the  foundation  of 
the  right  to  levy  taxes  of  this  kind  this  court  says  (p. 
55)  : 

''It  will  not  be  presumed,  that  it  was  ever  intended 


Chap.  3 J  Personal  Liability  for  Local  Tax.  55 

that  a  corporation  in  the  exercise  of  this  high  preroga- 
tive should  absorb  the  whole  value  of  a  person's  prop- 
erty, and  tlien  come  on  him  for  the  deficit.  The  very 
idea  of  such  an  assumption  on  the  part  of  either  the 
city  or  the  state  legislature,  would  be  sufficient  to  star- 
tle one  who  had  even  the  most  crude  notion  of  the  ob- 
jects and  purposes  of  a  just  or  enlightened  government. 
The  idea  that  a  city  could  improve  a  street  and  assess 
the  property  benefited  thereby  and  sell  the  entire  proi>- 
erty  and  then  go  on  the  owner,  who  may  reside  out  of 
the  city,  and  sell  his  property  there  to  pay  the  balance 
of  the  assessment,  and  this  all  in  consideration  of  the 
benefit  conferred  on  his  property,  which  was  already 
sold,  would  seem  at  least  in  its  results  like  taking  the 
property  of  the  owner  and  converting  it  into  public  use 
without  any  just  compensation.  I  do  not  believe  that 
by  this  indirection  you  can  do  that  which  is  forbidden 
by  the  Constitution  if  directly  done.  If  a  personal 
judgment  can  be  rendered  in  such  case,  all  this  may 
happen.  It  is  true,  it  is  not  likely  to  ha])i)en,  but  the 
fact,  that  it  may  possiblj^  happen,  is  enough  to  condemn 
the  law." 

If  this  personal  judgment  is  to  stand,  execution 
may  issue  and  all  of  Mr.  Allen's  property  in  St.  Louis 
may  be  sold,  and  yet  the  execution  may  be  returned 
unsatisfied  in  part;  an  alias  execution  may  be  issued 
to  Jackson  county,  Missouri,  and  his  farm  lands  in 
Jackson  county  (distant  more  than  two  hundred  miles 
from  St.  Louis  and  this  Gravois  road,  and  in  no  way 
benefited  by  this  macadamizing  on  the  Gravois  road  in 
St.  Louis)  may  })e  sold  and  his  title  and  pro])erty  for- 
ever pass  from  him.  This  sale  and  conveyance  {i)h  invi- 
tum)  of  Mr.  Allen's  farm  lands  in  Jackson  county,  Mis- 
souri, remote  from,  the  street  macadamized  and  not 
benefited  by  that  macadamizing,  constitutes  a  taking  of 


56  Law  of  Local  Taxation .  [Cliap.  3 

Mr.  Allen's  farm  lands  in  Jackson  county,  Missouri,  for 
public  use  without  just  compensation.  The  statute  at- 
tempting to  authorize  it  is  invalid.  In  all  execution 
sales  the  courts  have  control  over  their  own  process  and 
will  so  control  execution  sales  as  not  to  sacrifice  the 
property  of  the  execution  defendant.  The  presump- 
tion is  that  property  will  sell  at  public  auction  for  its 
full  value.  In  fact  one  of  the  ways  to  ascertain  the 
value  of  property  is  to  sell  it  publicly  at  auction.  This 
St.  Louis  tax-law  is  invalid  because  it  takes  ''private 
projDerty  for  public  use  without  just  compensation." 
The  law  is  unconstitutional  in  the  particular  indi- 
cated. 

It  seems  the  court  here  did  not  indulge  the  conclus- 
ive presumption  that  the  property  was  benefited  to  the 
full  amount  of  the  tax-bills. 

Higgins  v.  Ansmus,  77  Mo.  351,  et  seq.  (A.  D. 
1883),  is  another  case  involving  the  constitutional  val- 
idity of  local  taxation  laws,  where  such  effect  anything 
except  a  lien  or  charge  on  the  particular  lot  on  the 
street,  xlusmus  the  defendant  and  appellant  was  the 
tax  collector  of  the  town  of  Linneus  in  Linn  county, 
Missouri.  The  tax  collector  was  by  law  authorized  to 
seize  and  sell  personal  property  to  pay  any  land  tax. 
(This  is  the  statute  law  generally  throughout  the 
United  States.)  The  tax-books  were  prima  facie  evi- 
dence (by  statute)  in  favor  of  the  collector  and  were 
prima  facie  authority  to  seize  and  sell  (the  same  as  on 
execution)  personal  property  to  pay  a  land  tax.  Hig- 
gins the  plaintiff  owned  a  lot  in  Linneus  in  Linn  county, 
Missouri.  A  sidewalk  was  constructed  under  ordinance 
and  contract  in  front  of  Mr.  Higgins'  lot,  the  cost  of 
which  was  under  the  statute  a  lien  or  charge  against 
the  lot.  General  taxes  were  levied  on  this  lot.  The 
general  tax  and  the  local  tax  were  delinquent  and  were 
in  the  hands  of  defendant  Ausmus  as  collector  for  col- 


Chap.  3]  Personal  Liability  for  Local  Tax.  57 

lection.  Mr.  Higgins  paid  his  general  taxes,  but  he 
refused  to  pay  tliis  sidewalk  tax  amounting  to  $8.(>4-, 
claiming  as  a  defense  that  he  had  the  right  to  make  the 
sidewalk  himself  and  he  was  given  no  op])ortunity  to 
do  so.  Ausmus,  the  collector,  having  the  tax-books  in 
his  possession,  seized  two  stoves  belonging  to  Mr.  Hig- 
gins and  was  proceeding  to  sell  the  stoves  to  pay  this 
sidewalk  tax.  Mr.  Higgins  replevied  the  stoves  be- 
fore a  justice  of  the  i>eace,  where  he  had  judgment  in 
his  favor,  as  also  in  the  circuit  court  on  appeal  by  de- 
fendant Ausmus,  the  collector.  The  case,  although  it 
involved  only  $8.64,  was  appealed  to  the  Supreme 
Court  of  the  State  where  the  judgment  was  affirmed. 
Defendant  Ausmus  asked  an  instruction  in  the  trial  in 
the  circuit  court  to  the  effect  that  "The  tax-book  is 
sufficient  to  authorize  him  [the  collector]  from  the  tax- 
book  alone  to  enforce  the  papnent  of  its  taxes  by  le\y, 
seizure  and  sale  of  i)ersonal  property  for  due  and  un- 
paid taxes,"  axid  that  the  finding  must  be  for  the  de- 
fendant. This  was  refused,  excepted  to,  and  assigned 
for  error  in  the  Supreme  Court.  It  seems  from  the 
evidence  that  this  special  tax  was  placed  on  the  tax- 
books  by  the  collector  without  authority,  and  there- 
fore the  tax-book  had  no  authority  by  law  like  an  exe- 
cution. The  court  hold  that  upon  either  of  the  two 
views  the  judgment  must  be  affirmed.  The  statute  is 
held  invalid  as  an  authority.  The  opinion  on  the  con- 
stitutional question  is  thus  (p.  353) : 

''There  can  be  no  question  but  that  a  tax-book,  em- 
anating from  proper  authority,  and  placed  in  the  hands 
of  one  authorized  to  collect  the  taxes  therein  contained 
when  it  camt  to  his  hands,  would  be  a  valid  ]irocess  and 
authorize  the  collector  to  le\^^  upon  proi>erty  of  a  de- 
linquent taxpayer  to  enforce  payment,  but  when  it  ap- 
pears, as  we  think  it  does  in  this  case,  that  the  special 
tax  for  the  non-pa^^nent  of  which  the  stoves  in  ques- 


58  Law  of  Local,  Taxation.  [Chap.  3 

tion  were  levied  upon,  was  for  street  or  sidewalk  im- 
provements in  front  or  opposite  defendant's  real  es- 
tate, it  did  not  confer  upon  the  collector  any  authority 
to  levy  upon  defendant's  personal  property,  it  having 
been  held  by  this  court  in  the  case  of  City  of  St.  Louis 
V.  Allen,  53  Mo.  44,  that  such  a  special  tax  or  assess- 
ment can  only  be  enforced  against  the  said  real  estate, 
and  that  a  personal  judgment  for  such  a  tax  against 
the  owner  is  null  and  void,  and  statutes  authorizing 
such  judgments  are  unconstitutional  and  void.  It  was 
also  so  held  in  the  case  of  City  of  Louisiana  v.  Miller, 
66  Mo.  467." 

The  rule  of  constitutional  law  that  ''AU  property 
subject  to  taxation  shall  be  taxed  in  proportion  to  its 
value,"  is  not  infringed. 

''Private  property  shall  not  be  taken  for  public  use 
without  just  compensation,"  is  the  rule  of  constitu- 
tional law  violated. 

The  City  of  Pleasant  Hill  v.  Dasher^  120  Mo.  675, 
affords  another  illustration  that  a  tax  law  may  in- 
fringe the  rule  of  constitutional  law  that  "Private 
property  shall  not  be  taken  for  public  use  without  just 
compensation. ' ' 

The  City  of  Pleasant  Hill  had  a  special  charter 
from  the  Legislature  of  the  State  (Laws  1858-9,  p.  155). 
The  eleventh  section  of  that  act  was  as  follows : 

"The  council  shall  have  power  to  cause  the  own- 
ers or  occupiers  of  real  estate  to  j)ave  and  repair  side- 
walks adjacent  to  the  property  which  they  may  own  or 
occupy;  and  if  any  such  owner  or  occupier  shall  fail 
to  pave  or  repair  the  same,  as  required  by  ordinance, 
the  council  may  cause  the  same  to  be  done,  and  may  re- 
cover the  full  expense  thereof  by  an  action  of  debt  in 
the  name  of  the  corporation." 

In  Missouri,  after  August  2,  1875,  the  time  the  new 
Constitution  went  into  effect  special  charters  can  not  be 


Cliap.  3]  Personal.  Liability  for  Local  Tax.  59 

granted  by  the  Legislature  to  cities,  towns  or  villages 
(Const,  art.  9,  sec.  7).  These  municipal  corporations 
must  hft  classified  into  classes  not  exceeding  four,  and 
the  power  of  each  class  shall  be  defined  by  general 
laws.  And  municipal  corporations  then  under  spec- 
ial laws  could  not  )x?  compelled  to  give  up  their  char- 
ters. Laws  were  to  be  passed  to  authorize  them  to  elect 
to  come  under  the  general  laws. 

The  City  of  St.  Louis  to  use  v.  Allen  was  decided 
in  the  year  1873  and  this  decision  rendered  invalid 
nearly  all  the  special  charters  in  the  State  granted 
from  the  time  of  the  admission  of  the  State  into  the 
Union.  Cities,  towns  and  villages  were  organized  also 
under  general  laws.  This  action  of  debt  was  a  promi- 
nent feature  of  all  these  laws.  In  fact,  an  action  of 
debt  seems  to  have  been  (as  at  common  law)  the  ai^pro- 
priate  action  to  recover  any  penalty  or  any  amount  due 
by  statute.  In  March,  1887,  fourteen  years  after  the 
decision  in  City  of  St.  Louis  to  use  v.  Allen,  the  Legis- 
lature of  Missouri  passed  an  act  (Laws  1887,  p.  95) 
that  all  cities  of  ten  thousand  inhabitants  or  less,  act- 
ing under  a  special  charter,  may  cause  owners  or  oc- 
cupiers to  pave  sidewalks,  making  the  cost  a  lien  on  the 
lot  and  providing  for  its  enforcement  in  court.  The 
court  say  (p.  680):  "The  act  of  1887  was  no  doubt 
passed  in  view  of  what  was  said  by  this  court  in  the 
case  of  the  City  of  St.  Louis  to  use  v.  Allen,  supra,  and 
repeated  in  subsequent  cases." 

In  approaching  the  subject  under  consideration  the 
court  says : 

"The  question  then  arises,  whether  the  city  has 
and  possesses  both  remedies,  or  whether  the  enforce- 
ment of  the  lien  is  the  only  remedy?  In  short,  does  the 
act  of  1887  repeal  section  2  of  the  Charter.'" 

"In  disposing  of  this  question,  it  is  well  to  bear  in 
mind  the  former  adjudications  of  this  court.     Neenan 


60  Law  of  Local  Taxation.  [Chap.  3 

V.  Smith,  50  Mo.  528,  was  an  action  to  collect  tax-bills 
for  macadamizing  a  street.  It  was  held  that  plaintiff 
was  not  entitled  to  a  general  judgment  against  the  own- 
er of  the  land,  and  doubt  was  expressed  whether  the 
Legislature  had  the  power  to  authorize  a  general  judg- 
ment in  such  cases.  The  authorities  on  this  question 
were  reviewed  in  the  subsequent  case  of  St.  Louis  to  use 
V.  Allen,  53  Mo.  44,  and  it  was  held  in  clear  and  distinct 
terms  that  the  Legislature  had  no  power  to  authorize  a 
personal  judgment  against  the  proi)erty-owner  in  suits 
to  recover  these  local  assessments.  The  ruling  made  in 
that  case  has  been  approved  in  a  number  of  subsequent 
cases."  The  rule  of  constitutional  law  infringed  is  that 
"Private  property  shall  not  be  taken  for  public  use 
without  just  compensation." 

This  tax-law  authorized  a  personal  judgment  and 
was  therefore  unconstitutional  and  void.  The  general 
judgment  was  a  lien  on  all  lands  and  all  these  lands 
could  be  sold  and  the  title  divested  from  the  owner  by 
sheriff's  deed.  If  it  be  thus  unconstitutional  to  divest 
his  title  to  property  under  a  general  judgment  declared 
by  statute  to  be  a  lien  to  be  enforced  by  execution  and 
sale,  can  the  Constitution  be  evaded  by  the  law  author- 
izing the  tax-bill  to  be  a  lien  just  like  the  general  judg- 
ment lien  and  effect  a  divestiture  of  title  in  the  same 
way?  AVith  the  general  judgment,  the  lien  is  uncon- 
stitutional. How  can  the  lien  be  made  better  without 
the  judgment,  execution  sale  and  sheriff's  deed?  Can 
the  lien  be  made  any  better  without  the  judgment  than 
with  it?  We  have  been  dealing  with  tax-bills  made 
liens  on  abutting  property  only.  If  the  Constitution 
prohibits  a  general  judgment,  a  general  judgment  lien, 
an  execution,  levy,  sale  and  sheriff's  deed,  will  the  Con- 
stitution permit  a  statute  accomplishing  the  same  re- 
sults by  authorizing  a  tax-bill  and  making  it  a  lien  on 
all  property  on  which  the  general  judgment  is  a  lien? 


Chap.  3]  Personal  Liability  for  Local  Tax.  61 

The  intent  ion  of  the  Constitution  as  deterniined  in 
these  decisions  is,  that  no  i)roi)erty,  except  abutting 
property,  shall  be  subjected  to  this  h)cal  tax.  Can  the 
Constitution  be  evaded  by  enacting  a  law  making  the 
tax-bill  a  lien  on  all  the  real  estate  and  personal  prop- 
erty of  the  owner  in  the  town  or  city .'  If  the  tax-bill 
lien  may  be  extended  a  foot  beyond  abutting  property, 
it  may  be  extended  a  mile.  Mr.  Higgins'  stoves  could 
not  be  taken  {lUggins  v.  xiusmus,  11  Mo.  351),  for  that 
eight-dolhir  sidewalk  tax-bill.  Could  they  take  a  lot 
two  blocks  away,  not  abutting  on  the  street?  Could 
they  take  his  wagon  and  team  or  his  farm?  Does  the 
Constitution  prohibit  a  name  or  a  thing?  Ts  it  compe- 
tent for  the  Legislature  to  enact  a  law  (as  was  at- 
tempted in  the  proposed  charter  for  Kansas  City,  de- 
feated by  popular  vote  in  March,  1905),  authorizing  an 
extension  of  the  lien  beyond  abutting  ])roperty,  whether 
benefited  or  not?  If  the  city  council  may,  by  its  char- 
ter as  its  law,  tax  abutting  property  for  grading  a 
street  in  front  of  it  when  the  grading  is  a  damage  to 
that  abutting  property,  no  reason  can  be  perceived  why 
distant  property  not  damaged  should  not  be  taxed.  If 
the  law  may  make  the  tax  a  lien  on  land  a  foot  distant 
from  abutting  property,  it  may  make  it  a  lien  on  land 
distant  one  mile,  or  anywhere  in  the  city. 


CHAPTER  4. 

EFFECT  OF  THE  DECISION  IN  THE  CITY  OF  ST.  LOUIS  TO  USE 
OF  SEIBERT  V.  ALLEN,  53  Mo,  44. 

A  little  attention  to  the  history  of  the  law  and  the 
development  of  the  rights  of  the  individual  as  against 
the  public,  the  king,  the  State,  the  United  States,  will 
show  the  importance  of  this  decision. 

Under  the  English  common  law  there  were 
scarcely  any  exemptions  from  execution  sales  on  judg- 
ments against  the  owner.  The  person  was  sacred;  so 
nothing  could  be  taken  from  the  person.  But  the  exe- 
cution was  against  the  man,  his  goods  and  chattels,  and 
in  Missouri  his  real  estate.  A  homestead  does  not  exist 
except  by  force  of  statute  law  so  far  as  being  safe 
against  the  execution  creditor.  In  the  early  history 
of  the  law  the  execution  creditor  took  all  the  personal 
property,  all  the  real  estate,  all  property  of  every  kind, 
and  then  sent  the  execution  defendant  to  jail,  there  to 
remain  till  the  debt  was  paid. 

Under  such  a  state  of  the  law,  it  was  or  would  have 
been  almost  an  idle  ceremony  to  make  these  local 
taxes  a  lien  on  the  land.  Hence,  the  action  of  debt 
was  given  in  almost  all  cases.  Thereby  all  that  the  in- 
dividual had  and  all  he  might  acquire  afterwards  was 
subject  to  this  charge  or  tax  made  by  the  king,  the 
state,  the  United  States.  ''The  owtners  of  the  lots 
charged  therewith  [the  cost  of  the  improvement]  shall 
be  bound  to  pay  said  costs  charged  like  Uahilities  con- 
tracted by  themselves,  and  may  he  sued  therefor  ac- 
cordingly," says  the  St.  Joseph  charter  as  late  as  A.  D. 
1860,  and  quoted  in  City  of  St.  Joseph  v.  Antlwny,  30 
Mo.  537,  at  538,  bottom. 

(62) 


Chap.  4]  Effect  of  St.  Louis  to  Use  v.  Allen.  63 

The  power  or  authority  adjudged  valid  in  InJiahi- 
tants  of  Palmyra  v.  Morton,  25  Mo.  5i).'>,  was  "To  have 
the  footways  and  sidewalks  of  tlie  streets  paved  at  the 
expense  of  the  owners  or  occupiers  of  the  adjacent 
lots;  and  if  such  owner  or  occujiior  fail  to  i)ave  the 
same  as  directed  by  ordinance,  said  trustees  shall  pave 
the  sanne  and  recover  the  full  expense  thereof  from  such 
owner  or  occupier,  before  any  court  of  competent  juris- 
diction by  action  of  debt."  This  statute  gives  a  gen- 
eral judgment  without  any  lien  on  the  abutting  land. 
This  general  judgment  is  void.  The  statute  authorizing 
it  is  void.  It  authorizes  the  taking  of  ])rivate  property 
for  public  use  without  just  compensation. 

"The  constitutional  power  to  authorize  the  ren- 
dition of  a  personal  judgment  in  such  case  was  not  con- 
sidered or  argued  "  (53  Mo.  44,  at  51).  luhahifanfs  of 
Palmyra  v.  Morton,  25  Mo.  593,  was  decided  in  Octo- 
ber, 1857 ;  City  of  St.  Louis  to  use  v.  Allen,  53  Mo.  44, 
in  March,  1873.  The  two  decisions  are  thus  less  than 
sixteen  years  apart  in  ]ioint  of  time.  On  princi]ile  they 
are  the  antipodes  of  each  other  on  American  constitu- 
tional law. 

The  argnment  advanced  in  Tnhahitants  of  Palmyra 
r.  Morton,  25  Mo.  593,  as  stated  in  the  opinion  of  the 
court  is,  that  ''It  is  obnoxious  to  the  constitutional  pro- 
vision which  declares  that  private  property  shall  not 
be  taken  for  public  use  without  just  compensation.  It 
may  be  observed,  in  the  first  place,  that  there  is  no  at- 
tempt here  to  exercise  the  right  of  eminent  domain ;  for 
it  was  not  proposed  to  condemn  the  defendant's  prop- 
erty to  ]mblic  use,  and  it  is  unnecessary  to  discuss  the 
character,  extent  or  limitation  of  that  power." 

The  judgment  is  different  in  St.  Louis  to  use  r. 
Allen,  53  Mo.  44.  By  that  jud^gment  private  property 
is  taken  for  public  use  without  just  compensation.  In 
InMbitants  of  Palmyra  i\  Morton  the  court  decline  to 
discuss  the  question. 


64:  Law  of  Loau.  Taxation.  [Chap.  4 

In  "An  Act  concerning  towns  in  this  Territory," 
in  Laws  of  Louisiana  1804-8,  adopted  (under  Act  of 
Congress)  by  Meriwether  Lewis,  governor,  and  John 
B.  C.  Lucas  and  Otho  Shrader,  judges  of  Louisiana 
Territory,  on  page  259,  Laws  Louisiana  Territory,  part 
one,  see.  5,  we  find  it  enacted  under  date  of  June  8, 1808, 
that  the  trustees  of  towns  have  the  power  to  "Cause 
the  streets  to  be  cleared  and  repaired  by  the  inhabi- 
tants thereof,  and  if  any  of  them  shall  refuse  to  clear  or 
repair  the  part  assigned  to  them,  the  trustees  may  hire 
the  clearing  and  repairing  of  the  same  and  le\y  and 
collect  the  price  thereof  on  the  persons  so  failing  and 
refusing. ' ' 

This  was  five  years  after  we  acquired  Louisiana. 
It  was  four  years  before  Missouri  Territory  wag 
formed — eight  years  before  the  Territory  of  Missouri 
adopted  the  English  common  law— thirteen  years  be- 
fore the  State  of  Missouri  was  admitted  into  the  Union 
of  states.  The  territorial  Legislature  of  Missouri  Ter- 
ritory adopted  the  same  law  in  the  same  language  at 
its  first  session  in  1813-14  (Laws  of  Missouri  Territory, 
1813,  p.  63-4,  sec.  — ).  This  was  also  the  language  of 
the  Revised  Statutes  of  the  State  of  Missouri  of  A.  D. 
1825,  vol.  2,  p.  766,  sec.  5;  Revised  Statutes  1835,  p.  602, 
sec.  7;  Revised  Statutes  1845,  p.  1050,  sec.  9;  Revised 
Statutes  1855,  vol.  2,  p.  1527,  sec.  12 ;  General  Statutes 
1865,  p.  242,  sec.  12;  Revised  Statutes  1879,  vol.  2,  p. 
995,  sec.  5015 ;  Revised  Statutes  1889,  vol.  1,  p.  464,  se<3. 
1677;  but  by  Revised  Statutes  1899,  vol.  2,  pp.  1411-12, 
sec.  6016,  it  becomes  a  lien  only. 

The  road  law  of  Missouri  has  always  had  similar 
defects.  Missouri  Territory,  by  its  first  Legislature, 
enacted  road  laws.  If  the  owner  consented,  the  road 
was  opened;  but  if  he  refused  to  assent  then  commis- 
sioners were  appointed  to  assess  his  damages,  but  the 
road  law  contained  this  remarkable  (to  this  writer  at 
least)  provision: 


Chap.  4-]  Effect  of  St.  Louis  to  Use  v.  Allen.  65 

"And  provided,  also,  that  nothing  sliall  be  allowed 
to  any  person  or  persons  where  sucii  road  passes 
through  his  or  their  unimproved  lands."  (Laws  Mis- 
souri Territory'  1813,  p.  73-4.) 

This  provision  is  retained  in  Revised  Statutes 
1825,  vol.  2,  p.  689,  sec.  3,  at  end.  If  they  may  be  au- 
thonzed  to  take  twenty  feet  they  may  take  a  mile.  Even 
as  late  as  1888  the  Congress  of  the  United  States  en- 
acted that  in  condemnation  proceedings  of  dams  of  the 
Monongehala  Navigation  Company  on  that  river,  the 
commissioners  assessing  damages  should  not  allow 
anything  for  the  franchise.  (U.  S.  Statutes  at  Large, 
vol.  25,  400-411,  c.  860),  but  this  was  held  void.  [14^ 
U.  S.  312,  Monongehala  Navigation  Co.  v.  U.  S.] 

In  Inhah'itauts  of  Palmi/ra  v.  Morton,  25  Mo.  593, 
there  was  involved  the  validity  of  a  sidewalk  repair  tax- 
under  a  statute  not  giving  a  lien  on  the  jand  in  front 
of  which  the  repairs  were  made,  but  merely  an  action 
of  debt  against  either  the  owner  or  occupant. 

''There  is  no  attempt  here  to  exercise  the  right  of 
eminent  domain,  for  it  was  not  proposed  to  condemn 
defendant's  land  to  iniblic  use,  and  it  is  unnecessary  to 
discuss  the  character,  extent  or  limitation  of  that 
power. ' ' 

In  City  of  St.  Louis  to  vse  v.  Allen,  53  ^lo.  44.  it 
was  not  proposed  to  condemn  Mr.  Allen's  land  to  pub- 
lic use. 

In  Higgins  v.  Ausmns,  77  Mo.  351,  it  was  not  pro- 
posed to  condemn  Mr.  Higgins'  stoves  to  public  use. 

In  Cifg  of  Pleasant  Tlill  v.  Dasher,  120  Mo.  675,  it 
was  not  proposed  to  condemn  Mr.  Dasher's  lot  to  pul> 
lie  use. 

In  Wells  V.  Weston,  22  Mo.  384,  it  was  not  pro- 
posed to  condemn  Mr.  Wells'  land  to  public  use. 

In  Tow-n  of  Cameron  r.  Stephenson,  69  ^lo.  372.  it 


66  Law  of  Local  Taxation.  [Chap.  4 

was  not  proposed  to  condemn  IVIr.  Stephenson's  lots 
(outside  of  the  town)  to  public  use. 

In  City  of  St.  Louis  v.  Hill,  116  Mo.  527,  it  was  not 
proposed  to  condemn  .the  forty  feet  front  of  each  lot 
on  this  boulevard  to  public  use. 

This  constitutional  restriction  is  confined  to  too 
narrow  limits  when  that  great  bulwark  of  the  rights  of 
man  is  made  to  read  thus :  ' '  Private  property  shall 
not  be  taken  for  public  use  in  the  exercise  of  the  right 
of  eminent  domain  without  just  compensation;  it  may 
be  taken  for  public  use  in  the  exercise  of  any  govern- 
mental power  other  than  that  of  eminent  domain  with- 
out paying  or  being  bound  to  pay  anything  for  it."  If 
this  be  legally  true,  then  the  constitutional  right  to 
hold  private  property  has  been  reduced  to  an  exceed- 
ingly attenuated  shadow.  The  Constitution  merely 
prohibits  a  name. 

Constitutional  provisions  formerly  read  thus: 
*  *  Private  property  shall  not  be  taken  or  applied  to  pub- 
lic use  without  just  compensation."  Its  language  has 
been  changed  generally  to  "Private  property  shall  not 
be  taken  or  damaged  for  public  use  without  just  com- 
pensation." The  damaging  prohibited  is  not  applied 
alone  to  cases  involving  the  exercise  of  the  right  of 
eminent  domain.  Private  property  shall  not  be  taken 
or  damaged  for  public  use  in  the  exercise  of  the  right 
of  eminent  domain,  or  in  the  exercise  of  any  other  gov- 
ernmental power.  It  can  not  be  done  directly  or  indi- 
rectly through  any  disguise  or  subterfuge,  or  under  any 
mask  or  pretense. 

The  decision  that  a  statute  law,  making  either  own- 
er or  occujyant  personally  liable  for  a  local  tax,  is  in 
violation  of  the  Constitution  of  the  State  in  permitting 
or  authorizing  "Taking  private  property  for  public 
use  without  just  compensation,"  was  scarcely  less  than 
a  revolution  in  the  constitutional  law  and  history  of 
the  State.  It  was  effected  in  the  short  space  of  less  than 


Chap.  4]  Effect  of  St.  Lou  is  to  Use  v.  Allen.  G7 

sixteen  years.  The  mere  occu])ant  of  town  ])ro])erty 
was  by  these  laws  made  jjeisonally  liable  for  the  cost 
of  the  improvement,  binding  all  he  had  and  all  his  fu- 
ture aciinisitions.  Indeed,  this  was  "sufficient  to  star- 
tle one  who  had  even  the  most  crude  notion  of  the  ob- 
jects and  i)urposes  of  a  just  or  enlightened  govern- 
ment" (53  Mo.  loc.  cit.  55).  Indeed,  this  is  "taking  the 
]u-operty  of  the  owner  and  converting  it  to  ])ublic  use 
without  any  just  compensation"  (53  Mo.  55).  This 
tax-law  is  in  conflict  with  the  state  Constitution  pro- 
viding that  "private  property  shall  not  be  taken  for 
public  use  without  just  compensation."  This  statute 
law— this  tax  law — does  not  infringe  that  provision  of 
the  state  Constitution  requiring  that  "All  property 
subject  to  taxation  shall  be  taxed  in  jiroportion  to  its 
value."  This  revolution  in  constitutional  law  is  thus 
commented  on  in  Sadler  v.  Roth,  59  Mo.  400,  at  402 
(March,  1875) : 

"The  Acts  of  1867,  1870,  and  1871,  in  relation  to 
special  tax-bills  in  the  city  of  St.  Louis,  appear  to  have 
been  devised  with  a  view  of  creating  a  personal  liabil- 
ity on  the  part  of  the  owiier  of  the  property  charged, 
and  since  the  decisions  of  this  court  in  the  case  of  Nee- 
Uiin.  V.  Smith  (50  Mo.  525),  and  the  CUij  of  St.  Louis  v. 
Allen  (53  Mo.  44),  holding  that  no  personal  judgment 
can  be  rendered  in  such  case,  the  unity  and  consistency 
of  the  acts  having  in  a  measure  been  destroyed,  it  is  a 
task  not  altogether  without  difficulty  to  determine  what 
force  and  effect  shall  be  given  to  the  portions  remain- 
ing undisturbed  by  judicial  decision." 

Some  fuller  statement  ought  to  be  made  as  to  the 
case  of  Zoeller  r.  Kellogg,  4  :\ro.  Ap]\  163  (A.  D.  1877), 
referred  to  in  Norwood  v.  Baker,  172  U.  S.  269,  and 
elsewhere  herein. 

In  July,  1868,  defendant  Kellogg  owmed  sixty-nine 
feet  front  on  two  streets,  occupying  two  blocks  in  St. 
Louis,  Missouri.     A   slri])    fifty  feet    wide    was    con- 


68  Law  of  Local  Taxation.  [Cliap.  4 

denined  for  fiercer  street,  leaving  of  the  sixty-nine 
feet,  seven  and  one-half  feet  on  one  side  and  eleven  and 
one-half  feet  on  the  other  side.  Then  the  new  street  was 
paved,  curbed  and  guttered,  and  tax-bills  issued  against 
these  small  strii:)s  of  ground  to  the  amount  of  $1,488.16 
face  value.  These  tax-bills  were  issued  in  1873.  The 
trial,  or  rather  the  decision,  was  made  June  12,  1877, 
in  the  St.  Louis  Court  of  Appeals.  The  court  at  the 
instance  of  the  plaintiff,  the  holder  of  these  tax-bills, 
gave  this  instruction  (p.  164) : 

"If  the  court,  sitting  as  a  juiy,  believe  from  the 
evidence  that  the  work  and  materials  charged  for  in  the 
bills  sued  on  were  furnished,  and  that  the  work  de- 
scribed in  said  bills  was  executed  according  to  the  con- 
tract, then  the  plaintiff  is  entitled  to  recover,  without 
regard  to  the  value  of  the  land  upon  which  the  lien  is 
sought  in  this  suit. ' ' 

Defendant  excepted  to  the  giving  of  this  instruc- 
tion and  after  an  unsuccessful  motion  for  a  new  trial 
sued  out  a  wi'it  of  error  and  the  trial  was  on  this  rec- 
ord. Plaintiff  obtained  a  judgment  below  for  $1,642.55 
against  this  lot,  ''worth  not  more  than  $1,025."  The 
judgment  was  reversed  and  the  case  remanded  for  a 
new  trial.  A  rehearing  was  granted  and  on  second  ar- 
gument the  judgment  was  again  reversed  and  the  case 
remanded.  Judge  Lewis  rendered  the  opinion  both  on 
the  original  hearing  and  on  the  rehearing. 

"A  power  which  compels  a  man  to  pay  for  work 
and  materials  which  he  has  neither  asked  for  nor  con- 
sented to  receive,  or  else  to  surrender  part  of  his  prop- 
erty to  another,  seems  so  repugnant  to  all  ideas  of  that 
personal  protection  which  is  the  chief  end  of  civil  gov- 
ernment that  we  must  be  able  to  refer  it  to  some  dis- 
tinct basis  of  constitutional  authority.  It  can  not  stand 
upon  the  power  of  taxation  for  it  lacks,  in  all  cases,  the 
essential  characteristics  of  equality  and  uniformity.  To 


Chaj).  4]  Effect  of  St.  Loris  to  Use  v.  Ali.en.  69 

tax  one  man  alone  for  a  specific  item  in  the  i)ublic  out- 
lay wonld  be  in  jirinciple,  no  better  than  to  tax  him  for 
all  the  ex])enses  of  the  mnnici])al  government.  The  only 
constitutional  basis  upon  which  the  assumed  power  can 
rest  at  all  is  the  right  of  taking  private  property  for 
the  ])ublic  use,  ui)on  just  compensation  being  made 
therefor. 

"Our  Supreme  Court  has  repeatedly  said  that  lo- 
cal assessments  for  improvements  'Is  not  considered  as 
a  burden,  but  as  an  equivalent  or  compensation  for  the 
enhanced  value  which  the  property  derives  from  the 
improvement'  {Lochvood  v.  City  of  St.  Louis,  24  Mo. 
20;  Shelian  v.  The  Good  Samaritan  Hospital,  50  Mo. 
155;  Citi/  of  St.  Louis  v.  Allen,  53  Mo.  54).  The  con- 
verse of  this  proposition  must  be  equally  true ;  so  that 
the  enhanced  value  which  the  ]U"operty  derives  from  the 
improvement  is,  practically,  the  compensation  which 
the  owner  gets  for  the  assessment  against  it.  This  as- 
sessment to  be  enforced  as  a  lien  which  may  subject  the 
property  to  a  sale  and  transfer  from  the  owner  is,  in 
effect,  a  taking  of  the  pro]ierty. 

''The  requirement  of  a  just  compensation  to  be 
made  for  private  property  taken  for  public  use  .  .  . 
applies  as  well  where  the  value  or  a  part  of  the  value 
of  the  pro]-»erty  is  taken  bv  being  subjected  to  the  ]iay- 
ment  of  a  sum  of  money,  as  where  the  property  itself, 
or  some  interest  therein,  is  directly  taken  for  public 
use"  (Creighton  r.  Manson,  Tl  Cal.  627). 

"This  brings  us  to  the  question  whether,  if  the  in- 
struction given  in  the  present  case  was  correct,  the  de- 
fendant was  thus  left  secure  in  his  constitutional  riulit 
of  'just  compensation'  for  the  ])roperty  so  devoted  to 
the  public  use. 

"The  real  value  of  the  lots  being  less  than  the 
amount  assessed  upon  them,  the  whole  property  would 
be  necessarilv  absorbed  for  satisfaction  of  the  lien.  The 


70  Law  of  Local  Taxation.  [Chap.  4 

owner  as  a  member  of  the  community,  would  derive  a 
certain  benefit  from  the  improvements,  in  common  with 
all  other  citizens.  But  this  being  simply  his  right,  in- 
dependently of  the  transfer,  would  not  be  compensa- 
tion in  any  sense.  \Newhy  v.  Platte  County^  25  Mo. 
258.]  The  enhanced  value  of  the  property  would  be 
nothing  to  him,  since  it  must  pass  into  other  hands. 
His  private  property  is  thus  literally  taken  for  public 
use,  luitJioiit  just  compensation  or  any  compensation  at 
all. 

"An  instruction  which  thus  makes  possible  a  pal- 
pable violation  of  constitutional  rights  is  necessarily 
erroneous.  It  may  follow  with  literal  exactness  the 
terms  of  the  legislative  authority  conveyed  in  the  city 
charter.  But  the  Legislature  can  confer  no  power 
which  is  constitutionally  forbidden  to  every  department 
of  civil  authority. 

"Constitutional  guaranties  must  be  paramount, 
not  merely  in  form,  but  in  substance.  Courts  can  not 
sustain  them  otherwise  than  by  loolcinig  to  the  ultimate 
effect  and  operation  of  an  enactment  or  other  measure 
as  ivell  as  to  the  shape  of  its  presentation, 

"We  are  of  the  opinion  that  no  just  compensation 
is  made,  within  the  requirement  of  the  Constitution, 
when  private  property  is  taken  without  any  benefit  to 
the  owner;  and  that  an  assessment  upon  property  for 
public  improvements  to  an  amount  exceeding  the  value 
of  the  property  is  unconstitutional  and  void,  hy  uhat- 
ever  agency  imposed." 

The  judgment  was  reversed  and  the  cause  re- 
manded, but  a  rehearing  was  granted  and  the  same 
judge  rendered  the  opinion  on  the  rehearing.  The  court 
say: 

"Upon  a  second  hearing  of  this  cause,  the  defend- 
ant in  error  insists  that  the  municipal  authority  to 
make  assessments  for  lo^al  improvement  is  in  nowise 


Chap,  4]  Effect  of  St.  Louis  to  Use  v.  Allen.  71 

referable  to  the  right  of  eminent  domain,  but  inheres 
in  the  taxing  powci-  alone.  From  this  ho  argues  that 
the  constitutional  guaranty  against  the  taking  of  pri- 
vate property  for  public  purposes  without  just  com- 
pensation is  not  infringed  when  such  an  assessment  ex- 
ceeds in  amount  the  value  of  the  property  assessed, 
so  that  the  owner  nmst  neetls  be  deprived  of  his  prop- 
erty, as  well  as  of  the  si^cial  benefits  which,  in  theory, 
are  supposed  to  afford  a  remuneration  for  tlie  assess- 
ment. If  he  thus  loses  all  and  gets  absolutely  nothing 
in  return,  this  is  held,  nevertheless,  to  be  a  constitu- 
tional exercise  of  the  taxing  power. 

"It  may  be  admitted  that  most  of  the  authorities 
cited  refer  the  authority  under  consideration  to  the 
taxing  power  and  deny  that  its  origin  is  in  eminent  do- 
miain.  But  in  considering  a  question  of  constitutional 
protection,  the  nominal  source  of  an  assumed  power  is 
of  far  less  moment  than  the  effects  of  its  exercise.  The 
power  of  taxation  is  inferred  from  the  general  grant 
of  legislative  authority.  But,  like  all  general  grants, 
it  must  yield  whenever  found  in  conflict  with  any  spec- 
ial restriction.  The  restriction  requiring  just  com- 
pensation when  one's  property  is  taken  for  public  pur- 
poses is  usually  applicable  in  practice,  to  the  power  of 
eminent  domain.  If,  however,  in  a  peculiar  state  of 
facts,  it  shall  be  found  directly  hostile  to  a  certain  exer- 
cise of  the  taxing  power,  or  of  any  other  power,  the 
restriction  will  be  supreme,  and  the  ]iower  must  so  far 
be  surrendered. 

''The  arg:ument  of  counsel  admits  a  distinction  be- 
tween the  ]X)wer  to  impose  taxes  for  general  purposes 
and  the  power  to  make  assessments  u]>on  pro]ierty  to 
defray  the  ex])enses  of  local  im]>rovements.  The  dis- 
tinction is  really  so  broad  that  our  Supreme  Court  ha>^ 
said:  'The  whole  theory  of  local  taxation  or  assess- 
ments is  that  the  improvements  for  which  they  are  lev- 


72  Law  of  Local  Taxation.  [Chap.  4 

ied  afford  a  remuneration  in  the  way  of  benefits.  A  law 
which  wonld  attempt  to  make  one  person  or  a  given 
number  of  persons,  under  the  guise  of  local  assess- 
ments, pay  a  general  revenue  for  the  public  at  large, 
would  not  be  an  exercise  of  the  taxing  power,  but  an  act 
of  confiscation'  (JlcCormacl-  v.  Patchen,  53  jNIo.  30). 

"It  is  thus  seen  that  while  special  remuneration 
has  no  concern  with  taxation  for  general  purposes,  it  is 
inseparable  from  the  theory  which  sanctions  assess- 
ments for  local  improvements.  If  the  special  're- 
muneration in  the  way  of  benefits'  be  eliminated,  then 
the  improvements  are  exclusively  in  the  interest  of  the 
general  public,  and  the  money  raised  to  pay  for  them  is, 
in  effect  a  section  of  the  'general  revenue  for  the  public 
at  large,'  levied  under  the  guise  of  local  assessments. 
'  This  is,  literally,  confiscation, '  which  is  merely  a  mode 
forbidden,  like  every  other,  of  taking  private  property 
for  public  purposes,  without  just  compensation  to  the 
owner.  If,  in  the  present  case,  the  defendant's  entire 
property  is  to  be  subjected  to  the  claim  asserted  for  the 
plaintiff,  he  will  unquestionably  be  giving  up  his  sub- 
stance to  the  uses  of  the  public,  and  to  its  revenues, 
also,  with  no  shadow  of  that  'remuneration  in  the  way 
of  benefits'  on  which  the  right  of  local  assessments  de- 
pends. The  judgment  is  again  reversed  and  the  cause 
remanded.  It  is  gratifying  to  reflect  [say  the  court  in 
conclusion]  that  the  vital  question  involved  is  one  which 
secures  the  right  of  appeal  to  a  tribunal  whose  wisdom 
will  correct  any  erroneous  views  herein  admitted,  and 
whose  determination  will  be  final."  That  right  was  not 
exercised. 

Here  this  property,  after  all  the  benefits  accruing 
fromi  this  public  improvement  have  been  added  to  it, 
was  worth  $1,025,  and  in  the  opinion  in  chief  and  on  re- 
hearing the  tax  was  held  to  be  unconstitutional.  The 
tax  accrued  prior  to  the  Constitution  of  1875  and  w^as 


Chap.  4]  Effect  of  St.  Louis  to  Use  v.  Allen.  73 

hence  not  affected  by  the  restrictions  contained  in  that 
instrument.  But  this  decision  lias  been  coniijletely,  si- 
lently overruled.  The  opposite  doctrine  has  been  irre- 
vocably established.  These  special  assessments  were 
not  embraced  and  were  not  intended  to  be  embraced  in 
the  restrictions  on  taxation  written  in  the  Missouri 
Constitution  of  1875.  The  reasons  assigned  were  that 
these  taxes  were  for  benefits  conferred  and  the  benefit 
had  to  be  special,  ]ieculiar  and  exce]itive;  a  general 
benefit  rendered  the  tax  unconstitutional.  Tlie  reader 
will  note  that  this  is  a  tax  of  one-hundred  and  sixty- 
three  per  cent  on  the  land  and  accrued  benefits,  and  we 
are  told  this  is  not  a  burden.  Some  of  us  have  in  our 
v^ain  imaginings  supposed  tli.'it  a  local  tax  on  our  lands 
and  houses  amounting  to  one-hundred  per  cent  was  a 
burden  but  it  is  not.  Here  is  a  tax  of  one-hundred  and 
sixty-three  per  cent  on  this  land  with  the  accrued 
benefits  but  it  is  leally  not  a  burden.  It  is  the  Consti- 
tution of  the  State  of  Missouri  that  says  this  tax  of 
one-hundred  and  sixty-three  per  cent  is  not  a  burden. 
I  wish  to  call  the  attention  of  the  reader  to  this  State 
of  our  constitutional  law.  In  its  iniquity  it  is  not  ex- 
ceeded in  the  history  of  the  race. 

At  one  time  the  Constitution  of  the  United  States 
was  invoked  in  Dred  Scott  v.  Sanford,  and  a  decision 
was  rendered  by  the  Supreme  Court  of  the  United 
States  construing  the  Constitution  of  the  United  States 
(and  that  decision  became  a  part  of  that  Constitution). 
The  Constitution  of  the  United  States  thus  constnied 
was  denounced  as  **A  league  with  hell  and  a  covenant 
with  the  devil,"  but  we  submit  that  this  Missouri  Con- 
stitution is  hrll  it.'^elf,  and  it  beats  the  old  devil  sixty- 
three  per  cent. 

Now  the  law  would  not  be  satisfied  with  less  than 
sixty-three  per  cent  more  than  the  entire  value  of  land, 
improvement  and  benefit. 


74  Law  of  Local  Taxation.  [Chap.  4 

On  Decemiber  7,  1886,  a  little  over  nine  years  after 
the  rendition  of  the  opinion  in  Zoeller  v.  Kellogg,  4 
Mo.  App.  163,  the  St.  Louis  Court  of  Appeals  rendered 
another  opinion  in  a  similar  case  of  special  tax  on  real 
estate.  The  judge  who  rendered  the  opinion  in  Zoel- 
ler V.  Kellogg,  4  Mo.  App.  supra,  was  on  the  bench  then, 
and  concurred  in  this  opinion  seemingly  widely  at  var- 
iance with  the  opinion  in  Zoeller  v.  Kellogg.  The  case 
referred  to  is  that  of  Allen  v.  Kremling,  23  Mo.  App. 
561.    At  568,  bottom  paragraph,  the  court  say: 

''When  the  present  city  charter  (St.  Louis)  was 
adopted,  there  was  no  limitation,  either  by  legislative 
l)rovision,  or  judicial  construction,  on  the  city's  power 
in  levying  these  special  taxes.  The  courts  had  uniform- 
ly decided  that  the  city's  power  under  former  charters, 
to  improve  its  streets  and  charge  the  cost  of  the  im- 
provement on  the  adjoining  property,  was  a  continuing 
power.  That  this  power  might  be  exercised  from  time 
to  time,  as  the  wants  of  the  municipal  corporation 
might  require,  and  that  of  the  necessity  or  expediency 
of  its  exercise,  the  governing  body  of  the  corporation 
was  the  sole  judge  {McCormack  v.  Pafchen,  53  Mo.  33). 
It  is  true  that  the  theory  upon  which  the  constitutional 
validity  of  such  taxes  was  upheld  was  one  of  a  corre- 
sponding special  benefit  resulting  to  the  property  from 
the  improvement  (Neenan  v.  Smith,  50  Mo.  525),  but 
since  the  property-owner  could  never  he  heard  to  say 
that  his  property  had  not  in  fact  been  benefited,  in  op- 
position to  the  legislative  declaration  that  it  had,  the 
theory  of  assessments  was  one  tvhich  he  coidd  never 
practically  controvert.  {Seibert  v.  Tiffany,  8  Mo.  App. 
33).  [Two  years  before  this  decision  viz.,  October 
term,  1884,  the  Supreme  Court  of  Missouri  had  said  in 
City  of  Kansas  to  use  of  Coates  v.  Ridenour,  84  Mo. 
253,  at  261,  that  the  property-owner  when  sued  on  a 
tax-bill  may  ''entirely  defeat  a  recovery  by  overthrow- 
ing the  theory  of  benefits  conferred."]    An  instance  of 


Chap.  4]  Effect  of  St.  Louis  to  Use  v.  Allen.  To 

seeming  departure  from  tlio  law,  as  above  stated,  is 
foimd  in  Zodlcr  v.  Kellogg  (4  Mo.  App.  103),  where 
the  court  held  that  the  assessment  of  a  special  tax,  in 
excess  of  the  entire  value  of  the  lot,  was  equivalent  to 
confiscation,  and  could  not  be  upheld  on  th(^ 
theory  of  a  special  benefit  to  the  lot;  but  it  will  be 
noticed  that  the  court  arrived  at  that  result  by  treating 
the  assessment  as  being  in  the  nature  of  an  exercise  of 
the  power  of  eminent  domain  and  not  as  an  exercise  of 
the  taxing  ])ower,  a  holding  which  in  view  of  subse- 
quent decisions  of  the  Supreme  Court  is  not  tenable." 
[Farrar  v.  City  of  St.  Louis,  80  Mo.  379,  394;  2  Dill. 
j\Iun.  Corp.,  sec.  752.] 

Then  the  St.  Louis  charter,  limiting  special  taxes 
in  amount,  is  held  to  be  in  the  nature  of  a  special  ex- 
emption from  taxation  to  be  strictly  construed  against 
the  i^roperty-owner  claiming  the  exemption,  and  liber- 
ally in  favoi-  of  the  city  and  contractor. 

In  Allen  v.  Kremling,  23  Mo.  App.  at  569,  the  court 
say  in  reference  to  Zoeller  v.  Kellogg,  4  ^Mo.  App.  163 : 

"But  it  will  be  noticed  that  the  court  arrived  at 
that  result  [that  the  tax  was  imconstitutional]  by  treat- 
ing the  assessment  as  being  in  the  nature  of  an  exercise 
of  the  right  of  eminent  domain  and  not  as  an  exercise 
of  the  taxing  i)Ower,"  etc. 

In  the  motion  for  a  rehearing,  p.  167,  the  court 
say: 

''The  ])ower  of  taxation  is  inferred  from  the  gen- 
eral grant  of  legislative  authority.  But  like  all  general 
grants,  it  must  yield  whenever  found  in  conflict  with 
any  sj^ecial  restriction.  The  restriction  re(|uiring  ju'^t 
compensation  when  one's  property  is  taken  for  public 
purposes  is  usually  a]ii)licable,  in  ])ractice,  to  the  power 
of  eminent  domain.  If,  however,  in  a  ])eculiar  state  of 
facts,  it  shall  be  found  directly  hostile  to  a  certain  exer- 
cise of  the  taxing  power,  or  of  any  other  power  the  re- 


76  Law  of  Local  Taxation.  [Chap.  4 

striction  ivill  he  supreme  and  the  power  must  so  far  he 
surrendered.'' 

The  opinion  of  the  court  on  rehearing  in  Zoeller  v. 
Kellogg  must  have  been  overlooked  by  the  Judge  ren- 
dering the  oxnnion  in  Allen  v.  Kremling,  23  Mo.  App. 
569. 

In  exercising  the  power  of  eminent  domain  the 
party  having  the  power  to  take  usually  declares  such 
purpose  to  take  describing  the  property  to  be  taken  and 
for  what  purpose  and  then  begins  court  proceedings, 
but  property  may  be  taken  in  fact  without  such  decla- 
ration of  purpose  and  the  party  may  deny  that  he  takes 
as  in  St.  Louis  v.  Hill,  116  Mo.  527.  St.  Louis  did  take 
although  the  city  denied  such  taking. 

In  Inhabitants  of  Palmyra  v.  Morton,  25  Mo.  593, 
at  595,  the  argument  against  the  local  tax  was  by  the 
court  stated  to  be  that  it  "Is  obnoxious  to  the  constitu- 
tional provision  which  declares  that  private  property 
shall  not  be  taken  for  public  use  without  just  compen- 
sation."  The  answer  made  by  the  court  to  the  objec- 
tion stated  shows  too  narrow  a  construction  of  the  con- 
stitutional provision  quoted.  The  court  say  in  answer 
to  this  objection : 

^'It  may  be  observed,  in  the  first  place,  that  there 
is  no  attempt  here  to  exercise  the  right  of  eminent  do- 
main, for  it  was  not  proposed  to  condemn  the  defend- 
ant's  property  to  public  use,  and  it  is  unnecessary  to 
discuss  the  character,  extent  or  limitation  of  that 
power."  This  evidently  is  intended  to  state  that  this 
constitutional  provision  applies  only  to  condemnation 
proceedings.  If  the  public  take  the  land  without  a  con- 
demnation proceeding,  then  the  public  is  not  bound  to 
pay  just  compensation.  If  the  public  are  bound  to  pay 
*'just  compensation"  onlj^  when  it  is  proposed  to  con- 
demn land  to  public  use,  then  there  never  will  be  a  pro- 
ceeding to  condemn;  the  state  authorities  will   take   it 


Chap.  4]  Effect  of  St.  Louis  to  Use  v.  Allen.  77 

without  coiideiiiiung  it.  Put  this  t'oiistruc-tioii  on  the 
constitutional  restriction  in  question  and  it  will  read 
thus:  ''Private  property  shall  not  be  condemned  for 
public  use  without  just  compensation,"  etc. 

If  this  be  the  rule  of  constitutional  hiw,  then  pri- 
vate property  never  will  l)e  condemned  to  public  use.  It 
will  be  taken  by  the  public  for  ])ublic  use  without  being 
condemned  by  the  i)ublic  and  without  being  subjected 
to  this  burden  of  i)aying  "just  compensation"  before 
getting  title  or  disturbing  the  owner. 

In  the  case  of  Powers  v.  Hurmert,  51  Mo.  136,  the 
land-owner's  fence  was  taken  but  it  was  not  con- 
demned. 

In  Armstrong  v.  St.  Louis,  69  Mo.  311,  the  land- 
owner maintained  ejectment  for  land  embraced  in  the 
street.  The  owner's  land  was  taken  for  a  street,  but  it 
was  not  condemned  for  public  use. 

In  Soulard  v.  St.  Louis,  36  Mo.  546,  the  landowner 
sued  for  the  value  of  his  land  taken  for  public  use 
(street)  and  recovered.  The  city  took  the  land  but 
never  condemned  it.  The  land  was  taken  in  trespass  or 
by  wrong;  the  wrongdoer  was  sued  and  judgment  ren- 
dered for  the  value  of  the  land,  and  when  this  judg- 
ment was  i)aid  it  operated  to  transfer  by  act  of  law  the 
title  to  the  land  to  St.  Louis  for  public  use,  but  it  was 
not  a  condemnation  proceeding. 

The  pro])er  construction  of  constitutional  provis- 
ions guarding  the  property  rights  of  individuals  was 
a  subject  of  discussion  in  Boyd  v.  United  States,  116  U. 
S.  616,  et  seq.  (A.  D.  1886).  The  court,  by  ^\y.  Jus- 
tice Bradley,  say,  p.  621 : 

"The  clauses  of  the  Constitution,  to  which  it  is 
contended  that  these  laws  are  re]nignant,  are  the 
fourth  and  fifth  amendments.  The  fourth  declares, 
'  The  right  of  the  ])eople  to  be  secure  in  their  persons, 
houses,  palmers,    and    effects,    against    imreasonable 


78  Law  of  Local  Taxation.  [Chap.  4 

searches  and  seizures,  shall  not  be  violated,  and  no  war- 
rants shall  issue,  but  upon  probable  cause,  supported 
by  oath  or  affirumtion  and  particularly  describing  the 
place  to  be  searched,  and  the  persons  or  things  to  be 
seized.'  The  fifth  article,  amongst  other  things,  de- 
clares that  no  person  *  Shall  be  compelled  in  any  crimi- 
nal case  to  be  a  witness  against  himself.' 

*  *  Note  the  language  of  these  amendments :  *  The 
right  of  the  people  to  be  secure  in  their  .  .  .  pa- 
pers .  .  .  against  unreasonable  searches  and  seiz- 
ures shall  not  be  violated. '  AVliat  is  an  unreasonable 
search  and  seizure?  A  man  shall  not  be  compelled  to 
be  a  witness  against  himself  in  a  criminal  case.  AVhat 
is  a  criminal  case  ?  These  are  the  questions  at  issue  in 
the  case  involving  the  constitutional  validity  of  an  act 
of  Congress,  June  22,  1874  (18  Stat,  at  Large  186). 

"The  suit  was  an  information  filed  by  the  district 
attorney  of  the  United  States  in  the  district  court  for 
the  southern  district  of  New  York  in  July,  1884,  in  a 
ease  of  seizure  and  forfeiture  of  property  against  thir- 
ty-five cases  of  plate  glass,  seized  by  the  collector  as 
forfeited  under  the  revenue  laws. 

"It  is  declared  by  that  section  (12)  that  any  owner, 
importer,  consignee,  etc.,  who  shall,  with  intent  to  de- 
fraud the  revenue,  make  or  attempt  to  make,  any  entry 
of  imported  merchandise,  by  means  of  any  fraudulent 
or  false  invoice,  affidavit,  letter  or  paper,  or  by  means 
of  any  false  statement,  written  or  verbal,  or  who  shall 
be  guilty  of  any  willful  act  or  omission  by  means 
whereof  the  United  States  shall  be  deprived  of  the  law- 
ful duties,  or  any  portion  thereof,  accruing  upon  the 
merchandise,  or  any  portion  thereof,  embraced  or  re- 
ferred to  in  such  invoice,  affidavit,  letter,  paper,  or 
statement,  or  affected  by  such  act  or  omission,  shall  for 
each  offense  be  fined  in  any  sum  not  exceeding  $5,000 
nor  less  than  $50,  or  be  imprisoned  for  any  time  not 


Chap.  4]  Effect  of  St.  Louis  to  Use  v.  Allen.  79 

exceeding  two  years  or  lx)tli;  and  in  addition  to  such 
fine,  such  merchandise  shall  be  forfeited. 

"The  charge  was  that  the  goods  in  question  were 
imported  into  the  United  8tates  to  the  i)ort  of  New 
York,  subject  to  tlie  payment  of  duties;  and  that  tlie 
owners  or  agents  of  said  merchandise,  or  other  person 
unknown,  committed  the  alleged  fraud,  which  was  de- 
scribed in  the  words  of  the  statute.  The  plaintiffs  in 
error  entered  a  claim  for  the  goods,  and  pleaded  that 
they  did  not  become  forfeited  in  the  manner  and  fonn 
as  alleged.  On  the  trial  of  the  cause  it  became  import- 
ant to  show  the  quantity  and  value  of  the  glass  contain- 
ed in  twenty-nine  cases  previously  imported.  To  do 
this  the  district  attorney  offered  in  evidence  an  order 
made  by  the  district  judge  under  section  5  of  the  same 
act  of  June  22,  187-J-,  directing  notice  under  th*- 
seal  of  the  court  to  be  given  to  the  claimants,  requiring 
them  ^0  produce  the  invoice  of  the  twenty-nine  cases. 
The  claimants  in  obedience  to  the  notice,  but  objecting 
to  its  validity  and  to  the  constitutionality  of  the  law, 
produced  the  invoice ;  and  when  it  was  offered  in  evi- 
dence by  the  district  attorney,  they  objected  to  its  re- 
ception on  the  ground  that,  in  a  suit  for  forfeiture,  no 
evidence  can  be  compelled  from  the  claimants  them- 
selves, and  also  that  the  statute,  so  far  as  it  compels 
the  production  of  evidence  to  be  used  against  the  clai- 
mants, is  unconstitutional  and  void."  (S.  C,  page 
517-8). 

The  evidence  was  received  and  the  juiy  found  for 
the  United  States,  condemning  the  thirty-five  cases  of 
glass,  followed  by  judgment  of  forfeiture,  taken  on  er- 
ror to  the  United  States  Circuit  Court,  judgment  there 
affii-med  and  thence  taken  on  error  to  the  Supreme 
Court  of  the  I'nited  States.  The  constitutional  valid- 
ity of  section  5  of  act  June  22,  1874  (18  U.  S.  Stat. 
186),  is  involved  and  in  controversy. 


80  Law  of  Local  Taxation.  [Chap.  4 

Under  this  section  in  all  suits  and  proceedings  not 
criminal,  the  United  States  District  attorney  might 
file  his  motion  stating  that  defendant  or  claimant  had 
in  his  jjossession  certain  papers  material  to  the  United 
States  in  the  causes  provided  for.  The  United  States 
district  attorney  stated  the  substance  of  the  contents 
of  these  papers  and  thereupon  an  order  was  made  to  be 
served  on  the  claimant  requiring  him  to  produce  the 
papers  and  permit  an  insj^ection  thereof;  the  papers 
were  not  authorized  to  be  seized;  the  claimant  was  sim- 
ply required  to  produce  the  paper.  If  he  failed  to  pro- 
duce the  paper  the  contents  were  taken  to  be  as  stated 
by  the  United  States  district  attorney. 

Here  the  claimant  jDroduced  the  paper  under  the 
order  but  objected  to  its  being  used  as  evidence  because 
this  fifth  section  was  unconstitutional  as  being  con- 
trary to  the  fourth  and  fifth  amendments  to  the  Consti- 
tution of  the  United  States.  It  was  claimed  to  be  an 
unreasonable  search  and  seizure  under  the  fourth 
amendment,  and  compelling  a  witness  to  give  evidence 
against  himself  in  a  criminal  case  contrary  to  the  fifth 
amendment. 

Then  judgment  of  forfeiture  was  sought  to  be  sus- 
tained under  the  fifth  section  of  the  Act  of  Congress  its 
language  being,  "in  all  suits  and  proceedings  other 
than  criminal."  It  was  said  that  this  suit  to  forfeit 
these  goods  was  not  a  criminal  suit  or  proceeding,  and 
hence  not  within  the  terms  of  the  fifth  amendment. 

Under  the  fourth  amendment  the  argument  for  the 
constitutional  validity  of  the  act  of  Congress  was  that 
there  was  no  search  or  seizure  either  authorized  or  at- 
tempted. The  party  was  simply  required  to  produce 
papers;  he  kept  them  in  his  possession  and  merely  al- 
lowed L'nited  States  attorney  to  inspect  them.  It  was 
said  that  this  law  did  not  authorize  any  search  or  seiz- 
ure and  what  was  done  was  not  a  search  or  seizure.  Say 
the  court,  at  page  633 : 


Cliap.  4]  Effect  of  St.  Louis  to  Use  v.  Allen.  81 

"Reverting  to  the  peculiar  pliraseology  of  this  act 
and  to  the  information  in  the  i)resent  case,  which  is 
founded  on  it,  we  have  to  deal  with  an  act  which  ex- 
pressly excludes  criminal  proceedings  from  its  opera- 
tion (although  embracing  civil  suits  for  penalties  and 
forfeitures),  and  with  an  infonnation  not  technically  a 
criminal  proceeding,  and  neither,  therefore,  within  the 
literal  terms  of  the  fifth  amendment  to  the  Constitu- 
tion any  more  than  it  is  within  the  literal  terms  of  the 
fourth.  Does  this  relieve  the  proceedings  or  the  law 
from  being  obnoxious  to  the  prohibitions  of  either?  "VVe 
think  not;  we  think  tliei/  are  uiflti)i  the  spirit  of  both." 

This  law  is  obnoxious  to  both  amendments  and 
therefore  void.  For  the  paper  produced  no  search  was 
authorized  or  made.  He  was  simply  required  to  pro- 
duce the  paper.  This  is  the  ecpiivalent  of  a  search  and 
an  unreasonable  search.  Whenever  the  cost  of  a  public 
improvement  exceeds  the  special  benefit  the  sale  of 
the  abutting  property  to  pay  for  it  is  equivalent  to  tak- 
ijig  that  property  for  public  use  without  just  compensa- 
tion. The  paper  was  produced  but  kept  in  the  owner's 
possession.  He  was  merely  required  to  pennit  an  in- 
spection. This  was  not  a  seizure,  but  it  was  the  equiva- 
lent of  a  seizure.  The  Act  of  Congress  held  unconsti- 
tutional provides  that  this  inspection  may  be  had  in 
cases  other  than  criminal  and  the  evidence  may  be  used 
in  cases  other  than  criminal.  A  case  to  forfeit  goods 
for  violation  of  the  revenue  law  is  not  a  criminal  case, 
but  it  is  substantially  so.  He  is  not  giving  evidence 
against  himself  in  a  criminal  case  but  this  is  substan- 
tially so.    The  court  say  (S.  C,  page  634) : 

"As,  therefore,  suits  for  penalties  and  forfeitures 
incurred  by  the  commission  of  offenses  against  the  law. 
of  this  (|uasi-criminal  nature,  we  think  that  they  are 
within  the  reason  of  criminal  proceedings  for  all  the 
purposes  of  the  fourth  amendment  of  the  Constitution 

6 


82  Law  of  Local  Taxation.  [Chap.  4 

and  of  that  i)ortiou  of  the  fifth  amendment  which  de- 
clares that  no  person  shall  be  compelled  in  any  crimi- 
nal case  to  be  a  witness  against  himself;  and  we  are  fur- 
ther of  the  opinion  that  a  compulsory  production  of  the 
private  books  and  papers  of  the  owner  of  goods  sought 
to  be  forfeited  in  such  a  suit  is  compelling  him  to  be  a 
witness  against  himself,  within  the  meaning  of  the  fifth 
amendment  to  the  Constitution,  and  is  the  equivalent 
of  a  search  and  seizure— and  an  unreasonable  search 
and  seizure — within  the  meaning  of  the  fourth  amend- 
ment. 

"Though  the  proceeding  in  question  is  divested  of 
many  of  the  aggravating  incidents  of  actual  search  and 
seizure,  yet,  as  before  said,  it  contains  their  substance 
and  essence,  and  effects  their  substantial  purpose.  It 
may  be  that  it  is  the  obnoxious  thing  in  its  mildest  and 
least  repulsive  form;  but  illegitimate  and  unconstitu- 
tional practices  get  their  first  footing  in  that  way, 
namely,  by  silent  approaches  and  slight  deviations 
fi'om  legal  modes  of  procedure.  This  can  only  be  ob- 
viated by  adhering  to  the  rule  that  constitutional  pro- 
visions for  the  security  of  persons  and  property  should 
he  liberally  construed.  A  close  and  literal  construction 
deprives  them  of  half  their  efficacy  and  leads  to  grad- 
ual depreciation  of  the  right  as  if  it  consisted  more  in 
sound  than  in  substance.  It  is  the  duty  of  courts  to  he 
tratchfid  for  the  constitutional  rights  of  the  citizen  and 
against  any  stealthy  encroachments  thereon.  Their 
motto  should  be  ohsta  principiis."  [Have  not  our 
courts  changed  "Citizen"  to  "Contractor. "—Ess.] 

"We  have  no  doubt  that  the  legislative  body  is 
actuated  by  the  samie  motives;  but  the  vast  accumula- 
tion of  public  business  brought  before  it  sometimes  pre- 
vents it,  on  a  first  presentation,  from  noticing  objec- 
tions which  become  develo])ed  by  time  and  the  practi- 
cal application  of  the  objectionable  law." 


Chap.  4]  Effect  of  St.  Louis  to  Use  v.  Allen.  83 

The  above  was  a  revenue  or  tax  case.  It  was  es- 
sentially a  tax  case.  Our  courts  reverse  the  rule.  ''The 
limitation  is  in  the  nature  of  restriction  of  a  pre-exist- 
ing power  and  so  far  as  the  property-owner  is  concern- 
ed, an  exemption  from  taxation,  and  as  such  to  be  con- 
strued strictly.  Assuming  that  the  clause  could  with 
equal  reason,  be  construed  to  mean,  either  what  the 
plaintiff  claims,  or  what  the  defendant  claims  it  does 
mean  (and  that  is  the  best  that  can  be  said  for  the  de- 
fendant's claim),  and  it  results  that  the  i)laintiff' s  con- 
struction (tax-bill  holder)  must  prevail,  because  as  to 
him  (the  contractor),  representing  the  municipality, 
the  clause  is  a  restriction  of  a  pre-existing  power,  but 
as  to  the  defendant  (property-owner)  it  is  the  grant  of 
a  new  exemption."  [Allen  v.  Kremling,  23  Mo.  App. 
561  at  569  bottom.] 


CHAPTER  5. 

THEORIES   OF    TAXATION. 

In  the  different  states  and  territories  of  the  Union 
and  in  the  United  States,  tliere  is  no  such  thing  as  a  tax 
by  conmion  law;  it  is  all  by  statute.  We  construe  and 
apply  statutes.  The  British  Constitution  is  no  re- 
striction on  king,  lords  and  connnons.  The  American 
constitutions  restrict  the  executive  the  legislative  and 
judicial  powers.  That  there  may  be  no  mistake  about 
our  constitutions,  they  are  put  in  writing.  There  are 
two  theories  on  which  local  taxation  is  generally  sup- 
ported. The  first  is  that  it  is  a  part  of  the  general  tax- 
ing power  of  the  government.  It  is  not  conferred  by 
the  Constitution.  It  is  not  limited  by  it  or  by  the  usual 
bill  of  rights  in  our  state  constitutions;  that  it  is  a  leg- 
islative power;  that  the  courts  can  not  control  it.  That 
in  the  absence  of  special  express  definite  constitutional 
limitations  in  terms  beyond  any  reasonable  doubt  the 
legislative  power  may  tax  white  horses  and  exempt  all 
others;  that  they  may  tax  land  and  exempt  houses. 
They  may  tax  it  by  the  acre,  by  the  front  foot  or  ac- 
cording to  value;  they  may  make  the  tax  a  personal 
charge  only  or  make  it  a  lien  on  land  or  other  property. 
They  may  hold  the  individual  personally  liable  with  all 
he  has  and  all  he  may  ever  acquire  without  homestead 
or  exemptions.  The  power  to  tax  is  the  power  to  de- 
stroy. The  power  to  tax  exists ;  that  the  judiciary  have 
no  power  to  control  this  exercise  of  legislative  power; 
that  no  act  of  legislation  levying  or  authorizing  the 
levy  of  any  tax  is  or  can  be  subject  to  "any  judicial 
veto"  on  the  part  of  any  court. 

(84) 


Chap.  5]  Theories  of  Taxation.  85 

The  second  theory  is  that  this  tax  is  imposed  to 
pay  for  a  benefit  conferred  on  tlie  owner's  ])roperty; 
tliat  the  tax  is  thei'cfore  no  bui'den;  tliat  tliis  tax  is 
special  in  that  it  is  a  benefit  to  the  person  and  ])roperty 
taxed  ;  that  the  tax  may  be  equal  to  or  less  than  the  bene- 
fit conferred;  that  the  tax  can  never  exceed  the  benefit 
and  that  the  benefit  for  which  the  tax  may  be  levied  is 
special,  peculiar,  exceptive  not  enjoyed  in  common  with 
other  like  property  in  the  vicinity.  That  if  the  pro})- 
erty  is  not  benefited  then  this  taxation  is  confiscation 
contraiy  to  all  constitutional  law.  We  shall  inquire 
into  the  second  ground  first. 

The  present  Constitution  of  Missoui'i  took  effect 
November  30,  1875.  Look  at  our  constitutional  history. 
Section  19  of  article  13  (Declaration  of  Rights,  Rev. 
Statutes  1825,  vol.  I,  p.  61),  Constitution  of  Missouri, 
adopted  July  19,  1820,  is  as  follows: 

''19.  That  all  ])roperty  subject  to  taxation  in 
this  State  shall  be  taxed  in  proportion  to  its  value." 

Constitution  of  ] 865,  adopted  April  8,  1865  (Gen. 
Statutes  1865,  p.  24),  section  30,  article  1,  Declaration 
of  Rights,  is  thus:  "shall  be"  is  changed  to  "ought  to 
be:" 

"30.  That  all  property  subject  to  taxation  ought 
to  be  taxed  in  pro})ortion  to  its  value." 

In  article  4,  section  27,  are  a  number  of  restric- 
tions on  the  powers  of  the  Legislature,  among  which  is 
one  prohibiting  it  from  "exempting  any  pro]ierty  of 
any  named  person  or  corporation  from  taxation"  by 
special  act.  Section  16,  article  11,  State  Constitution 
1865  (found  in  Gen.  Statutes  1865,  p.  43),  is  thus: 

"16.  No  property,  real  or  jiersonal,  shall  be  ex- 
empt from  taxation,  exce]it  such  as  may  be  used  exclu- 
sively for  public  schools,  and  such  as  may  belong  to 
the  United  States,  to  the  State,  to  counties,  or  to  mu- 
nicipal corporations,  within  this  State." 


86  Law  of  Local  Taxation.  [Chap.  5 

The  preceding  sections  were  thus : 

*'13.  The  credit  of  the  State,  shall  not  be  given  or 
loaned  in  aid  of  any  person,  association  or  corpora- 
tion; nor  shall  the  State  hereafter  become  a  stock- 
holder in  any  corporation  or  association,  except  for  the 
imrpose  of  securing  loans  heretofore  extended  to  cer- 
tain railroad  corporations  by  the  State"  (Const.  1865). 

"14.  The  General  Assembly  shall  not  authorize 
any  county,  city  or  town  to  become  a  stockliolder  in,  or 
to  loan  its  credit  to  any  company,  association,  or  cor- 
poration, unless  two-thirds  of  the  qualified  voters  of 
such  county,  city  or  town,  at  a  regular  or  special  elec- 
tion to  be  held  therein,  shall  assent  thereto." 

''15.  The  General  Assembly  shall  have  no  power 
for  any  purpose  whatever  to  release  the  lien  held  by 
the  State  upon  any  railroad"  (Const.  1865). 

These  sections  bear  somewhat  on  the  power  to  tax 
and  hence  are  inserted  here. 

I  copy  the  whole  of  article  10  of  the  Missouri  Con- 
stitution of  1875. 

Article  X. 

"  REVENUE  and  taxation. 

''Section  1.  The  taxing  power  may  be  exercised 
by  the  General  Assembly  for  state  pui-poses,  and  by 
counties  and  other  municipal  corporations,  under  au- 
thority granted  to  them  by  the  General  Assembly,  for 
county  and  other  corporate  purposes. 

"Sec.  2.  The  power  to  tax  corporations  and  cor- 
porate property  shall  not  be  surrendered  by  act  of  the 
General  Assembly. 

"Sec.  3.  Taxes  may  be  levied  and  collected  for 
public  purposes  only.  They  shall  be  uniform  upon  the 
same  class  of  subjects  within  the  territorial  limits  of 
the  authority  le^^ing  the  tax,  and  all  taxes  shall  be  lev- 
ied and  collected  by  general  laws. 


Chap.  5]  TiiEoiiiKs  OF  Taxation.  87 

''Sec.  4.  All  property  subject  to  taxation  shall  be 
taxed  in  proi)ortion  to  its  value. 

"Sec.  5.  All  railroad  corporations  in  this  State, 
or  doing  business  therein,  shall  l)e  subject  to  taxation 
for  state,  county,  school,  municipal  and  other  purposes, 
on  the  real  and  personal  i)i'Oi)erty  owned  or  used  by 
them,  and  on  their  gross  earnings,  their  net  earnings, 
their  franchises  and  their  capital  stock. 

"Sec.  6.  The  property  real  and  personal,  of  the 
State,  counties  and  other  municipal  coqiorations  and 
cemeteries  shall  be  exempt  from  taxation.  Lots  in  in- 
corporated cities  or  towns,  or  within  one  mile  of  the 
limits  of  any  such  city  or  town,  to  the  extent  of  one 
acre,  and  lots  one  mile  or  more  distant  from  such  cities 
or  towns  to  the  extent  of  five  acres,  with  the  buildings 
thereon,  may  be  exempted  from  taxation,  when  the 
same  are  used  exclusively  for  religious  worship,  for 
schools,  or  for  puqjoses  purely  charitable;  also  such, 
property  real  or  personal  as  may  be  used  exclusively 
for  agricultural  or  horticultural  societies;  pro\dded, 
that  such  exemptions  shall  be  only  by  general  law. 

''See.  7.  All  laws  exempting  property  from  taxa- 
tion, other  than  the  property  above  enumerated,  shall 
be  void. 

"Sec.  8.  The  state  tax  on  property,  exclusive  of 
the  tax  necessary  to  pay  the  bonded  debt  of  the  State, 
shall  not  exceed  twenty  cents  on  the  hundred  dollars 
valuation;  and  whenever  the  taxable  ])roperty  of  the 
State  shall  amount  to  nine  hundred  million  dollars,  the 
rate  shall  not  exceed  fifteen  cents. 

"Sec.  9.  No  county,  city,  town  or  other  municipal 
corporation,  nor  the  inhabitants  thereof,  nor  the  prop- 
erty therein,  shall  be  released  or  discharged  from  their 
or  its  proportionate  share  of  taxes  to  be  levied  for 
state  purposes,  nor  shall  commutation  for  such  taxes  be 
authorized  in  anv  form  whatsoever. 


88  Law  of  Local  Taxation.  [Chap.  5 

*'Sec.  10.  The  General  Assembly  shall  not  impose 
taxes  upon  counties,  cities,  towns  or  other  municipal 
corporations;  or  upon  the  inhabitants  or  property 
thereof,  for  county,  city,  town  or  other  municipal  pur- 
poses; but  may  by  general  laws,  vest  in  the  corporate 
authorities  thereof,  the  power  to  assess  and  collect 
taxes  for  such  purposes. 

*'Sec.  11.  Taxes  for  county,  city,  town  and  school 
purposes,  may  be  levied  on  all  subjects  and  objects  of 
taxation;  but  the  valuation  of  property  therefor  shall 
not  exceed  the  valuation  of  the  same  property  in  such 
town,  city  or  school  district  for  state  and  county  pur- 
poses. For  county  purposes  the  annual  rate  on  prop- 
erty, in  counties  having  six  million  dollars  or  less  shall 
not  in  the  aggregate,  exceed  fifty  cents  on  the  himdred 
dollars  valuation;  in  counties  having  six  million  dol- 
lars and  under  ten  million  dollars,  said  rate  shall  not 
exceed  forty  cents  on  the  hundred  dollars  valuation ;  in 
counties  having  ten  million  dollars  and  under  thirty 
million  dollars,  said  rate  shall  not  -exceed  fifty  cents  on 
the  hundred  dollars  valuation  and  in  counties  having 
thirty  million  dollars  or  more  said  rate  shall  not  exceed 
thirty-five  cents  on  the  hundred  dollars  valuation.  For 
city  and  town  purposes  the  annual  rate  on  property  in 
cities  and  towns  having  thirty  thousand  inhabitants  or 
more,  shall  not,  in  the  aggregate  exceed  one  hundred 
cents  on  the  hundred  dollars  valuation;  in  cities  and 
towns  having  less  than  thirty  thousand  and  over  ten 
thousand  inhabitants,  said  rate  shall  not  exceed  sixty 
cents  on  the  hundred  dollars  valuation ;  in  cities  and 
towns  having  less  than  ten  thousand  and  more  than 
one  thousand  inhabitants  said  rate  shall  not  exceed 
fifty  cents  on  the  hundred  dollars  valuation;  and  in 
towns  having  one  thousand  inhabitants  or  less  said 
rate  shall  not  exceed  twenty-five  cents  on  the  hundred 
dollars  valuation.    For  school  pui7>oses,  in  districts,  tlie 


Chap.  5]  Theouies  of  Taxation.  89 

annual  rate  on  property,  shall  not  exceed  forty  cents  on 
the  hundred  dollars  valuation:  Provided,  the  afore- 
said amiual  rates  for  school  purposes  may  ]ye  increased 
in  districts  formed  of  cities  and  towns  to  an  amount 
not  to  exceed  one  dollar  on  the  hundred  dollars  valua- 
tion; and  in  other  districts  to  an  amount  not  to  exceed 
sixty-five  cents  on  the  hundred  dollars  valuation,  on  the 
condition  that  a  majority  of  the  voters  who  are  tax- 
payers, voting  at  an  election  to  decide  the  question, 
vote  for  said  increase.  For  the  purpose  of  erecting 
public  buildings  in  counties,  cities  or  school  districts, 
the  rates  of  taxation  herein  limited  may  be  increased 
when  the  rate  of  such  increase  and  the  ]nirpose  for 
which  it  is  intended  shall  have  been  submitted  to  a  vote 
of  the  people  and  two-thirds  of  the  qualified  voters  of 
such  county,  city  or  school  district  voting  at  such  elec- 
tion shall  vote  therefor.  The  rate  herein  allowed  to 
each  county  shall  be  ascertained  by  the  amount  of  tax- 
able property  therein,  according  to  the  last  assessment 
for  state  and  county  purposes,  and  the  rate  allowed  to 
each  city  or  town  by  the  number  of  inhabitants,  ac- 
cording to  the  last  census  taken  under  the  authority  of 
the  State,  or  the  United  States ;  said  restrictions  as  to 
rates  shall  ap])Iy  to  taxes  of  every  kind  and  descrijv 
tion,  whether  general  or  special,  except  taxes  to  pay 
valid  indebtedness  now  existing  or  bonds  which  may 
be  issued  in  renewal  of  such  indebtedness. 

"Sec.  12.  No  county,  city,  town,  townshi]),  school 
district  or  other  political  corporation  or  subdivision  of 
the  State,  shall  be  allowed  to  become  indebted  in  any 
manner  or  for  any  purpose  to  an  amount  exceeding 
in  any  year  the  income  and  revenue  ])rovided  for  such 
year,  without  the  assent  of  two-thirds  of  the  voters 
thereof  voting  at  an  election  to  be  held  for  that  pur- 
pose; nor  in  cases  requiring  such  assent  shall  any  in- 
debtedness be  allowed  to  be  incurred  to  an  amount  in- 


[H)  Law  of  Local  Taxation.  [Chap.  5 

eluding  existing  indebtedness,  in  the  aggregate,  exceed- 
ing five  per  centum  on  the  value  of  the  taxable  property 
therein,  to  be  ascertained  by  the  assessment  next  before 
the  last  assessment  for  state  and  county  purposes,  pre- 
vious to  the  incurring  of  such  indebtedness :  Provided, 
that  with  such  assent  any  county  may  be  allowed  to  be- 
come indebted  to  a  larger  amount  for  the  erection  of  a 
court  house  or  jail:  and  provided  further,  that  any 
county,  city,  town,  township,  school  district  or  other  po- 
litical corporation,  or  subdivision  of  the  State,  incur- 
ring any  indebtedness,  requiring  the  assent  of  the  vot- 
ers as  aforesaid,  shall  before  or  at  the  time  of  doing  so, 
provide  for  the  collection  of  an  annual  tax  sufficient  to 
pay  the  interest  on  such  indebtedness  as  it  falls  due, 
and  also  to  constitute  a  sinking  fund  for  payment  of 
the  principal  thereof,  within  twenty  years  from  the 
time  of  contracting  the  same. 

''Sec.  13.  Private  property  shall  not  be  taken  or 
sold  for  the  payment  of  the  corporate  debt  of  a  munic- 
ipal corporation. 

"Sec.  14.  The  tax  authorized  by  the  sixth  sec- 
tion of  the  ordinance  adopted  June  sixth,  one  thou- 
sand eight  hundred  and  sixty-five,  is  hereby  abolished, 
and  hereafter  there  shall  be  levied  and  collected  an 
annual  tax  sufficient  to  pay  the  accruing  interest  upon 
the  bonded  debt  of  the  State,  and  to  reduce  the  princi- 
pal thereof  each  year  by  a  sum  not  less  than  two  hun- 
dred and  fifty  thousand  dollars ;  the  proceeds  of  which 
tax  shall  be  paid  into  the  state  treasury,  and  appro- 
priated and  paid  out  for  the  purposes  expressed  in  the 
first  and  second  subdivisions  of  section  forty-three  of 
article  four  of  this  Constitution.  The  funds  and  re- 
sources now  in  the  state  interest  and  state  sinking 
funds  shall  be  appropriated  to  the  same  purposes ;  and 
whenever  said  bonded  debt  is  extinguished,  or  a  sum 
sufficient  therefor  has  been  raised,  the  tax  provided  for 
in  this  section  shall  cease  to  l)e  assessed. 


Chap.  5]  Theories  of  Taxation.  91 

"See.  15.  All  moneys  now  or  at  any  time  hereaf- 
ter, in  the  state  treasury,  belonging  to  the  State,  shall 
immediately  on  the  reeeii)t  thereof,  be  deposited  by  the 
treasurer  to  the  credit  of  the  State  for  the  benefit  of  the 
funds  to  which  they  respectively  belong,  in  such  bank 
or  banks  as  he  may  from  time  to  time,  with  the  ap- 
proval of  the  governor  and  attorney-general,  select,  the 
said  bank  or  banks  giving  security,  satisfactory  to  the 
governor  and  attorney-general,  for  the  safe-keeping 
and  payment  of  such  deposits,  when  demanded  by  the 
state  treasurer  on  his  check  — such  bank  to  pay  a  bonus 
for  the  use  of  such  deposits  not  less  than  the  bonus 
paid  by  other  banks  for  similar  deposits ;  and  the  same 
together  with  such  interest  and  profits  as  may  accrue 
thereon,  shall  be  disbursed  by  said  treasurer  for  the 
purposes  of  the  State  according  to  law,  upon  warrants 
drawn  by  the  state  auditor,  and  not  otherwise. 

"Sec.  16.  The  treasurer  shall  keep  a  separate  ac- 
count of  the  funds  and  the  number  and  amount  of  war- 
rants received  and  from  whom ;  and  shall  publish  in 
such  manner  as  the  governor  may  designate,  quarterly 
statements,  showing  the  amount  of  State  moneys  and 
where  the  same  are  kept  or  deposited. 

"Sec.  17.  The  making  of  profit  out  of  state,  county 
city,  town  or  school  district  money,  or  using  the  same 
for  any  purpose  not  authorized  by  law,  shall  be  deemed 
a  felony,  and  shall  be  ]iunished  as  provided  by  law. 

"Sec.  18.  There  shall  be  a  state  board  of  equaliza- 
tion, consisting  of  the  governor,  state  auditor,  state 
treasurer,  secretary  of  state  and  attorney-general.  The 
duty  of  said  board  shall  be  to  adjust  and  equalize  the 
valuation  of  real  and  i^ersonal  proi)erty  among  the  sev- 
eral counties  in  the  State  and  it  shall  perform  such 
other  duties  as  are  or  may  be  prescribed  by  law. 

' '  Sec.  19.  No  moneys  shall  ever  be  paid  out  of  the 
treasury  of  this  State,  or  any  of  the  funds  under  its 


92  Law  of  Local  Taxation.  [Chap.  5 

management,  except  in  pursuance  of  an  appropriation 
by  law ;  nor  unless  such  payment  be  made,  or  a  warrant 
shall  have  been  issued  therefor,  within  two  years  after 
the  passage  of  such  appropriation  act;  and  eveiy  such 
law,  making  a  new  appropriation,  or  continuing  or  re- 
viving an  appropriation,  shall  distinctly  specify  the 
sum  appropriated,  and  the  object  to  which  it  is  to  be 
applied;  and  it  shall  not  be  sufficient  to  refer  to  any 
other  law  to  fix  such  sum  or  object.  A  regular  state- 
ment and  account  of  the  receipts  and  exj^enditures  of 
all  public  money  shall  be  published  from  time  to  time. 

''Sec.  20.  The  moneys  arising  from  any  loan,  debt 
or  liability,  contracted  by  the  State,  or  any  county,  city, 
town,  or  other  municipal  corporation,  shall  be  applied 
to  the  purposes  for  which  they  were  obtained,  or  to  the 
repayment  of  such  debt  or  liability,  and  not  otherwise. 

"Sec.  21.  No  corporation,  company  or  association 
other  than  those  formed  for  benevolent,  religious, 
scientific  or  educational  purposes,  shall  be  created  or 
organized  under  the  laws  of  this  State,  unless  the  per- 
sons named  as  corporators  shall,  at  or  before  the  filing 
of  the  articles  of  association  or  incorporation,  pay  into 
the  state  treasury  fifty  dollars,  for  the  first  fifty  thou- 
sand dollars  or  less  of  capital  stock,  and  a  further  sum 
of  five  dollars  for  every  additional  ten  thousand  dollars 
of  its  capital  stock.  And  no  such  corporation,  com- 
pany or  association  shall  increase  its  capital  stock 
without  first  joaying  into  the  treasury  five  dollars  for 
every  ten  thousand  dollars  of  increase:  Provided, 
that  nothing  contained  in  this  section  shall  be  con- 
strued to  prohibit  the  General  Assembly  from  levying 
a  further  tax  on  the  franchise  of  such  corporation." 

The  work  of  the  convention  that  framed  the  Con- 
stitution of  Missouri  of  1875  (our  present  Constitu- 
tion) was  completed  August  2,  1875.  It  was  adopted 
November  30,  1875.    The  58th  volume  of  Missouri  Ee- 


Chap.  5]  Theories  of  Taxation.  93 

jjorts  was  published  tliat  year.  The  nienibers  of  the 
convention  had  tlie  advantage  of  all  the  decisions  of 
the  Supreme  Court  of  Missouri  up  to  that  time.  And 
they  made  amendments  in  constitutional  law,  aiming 
doubtless  to  remedy  defects  and  imi)erfections  in  con- 
stitutional law  made  manifest  in  the  history,  the  judi- 
cial history  of  the  State.  Prior  to  the  year  1860  the 
State  issued  bonds  and  took  stock  in  railways  to  en- 
courage railway  building,  to  develop  the  country,  its 
commerce  and  manufactures.  These  bonds  became  a 
heavy  burden  as  they  had  to  be  paid  from  a  state  tax. 
The  stock  taken  by  the  State  and  paid  for  by  its  bonds 
became  worthless.  The  State  can  no  longer  lend  its  aid 
by  issuing  bonds  to  railroads.  The  Constitution  of 
1875  relieved  from  this  tax  for  the  future.  Then  the 
Legislature  for  a  series  of  years  authorized  cities, 
toTATis,  villages,  counties  and  even  townships,  and  strips 
of  land  not  organized,  to  take  stock  in  or  lend  their  aid 
to  railroad  building  and  to  issue  their  bonds  to  pay  for 
such  stock  or  as  a  mere  encouragement  to  railroad 
building.  By  the  Constitution  of  1865  this  power  was 
limited  to  cases  where  the  bonds  had  been  voted  by  the 
taxpayers  or  voters.  By  the  Constitution  of  1875  no 
city,  town,  county,  townshij)  or  other  municipal  cor- 
poration can  take  stock  in  or  loan  its  credit  to  any  com- 
pany, association  or  corporation.  This  was  a  limita- 
tion on  the  power  to  tax. 

Article  10  of  the  Constitution  of  Missouri,  framed 
August,  1875,  adoi)ted  November  oO,  1875,  is  a  series 
of  limitations  on  the  power  to  tax  by  the  State,  by  its 
counties,  its  cities,  towns,  villages,  townshijis  and  other 
subdivisions  of  the  State.  It  is  a  series  of  limitations 
on  the  power  to  tax,  thus  rendering  more  secure  the 
right  of  the  citizen  to  hold  and  enjoy  private  property. 

By  section  8  of  article  10,  the  state  tax  (exclusive 
of  the  tax  to  pay  bonded  indebtedness  of  the  State)  per 


94  Law  of  Local  Taxation.  [Chap.  5 

year  shall  not  exceed  twenty  cents  on  the  hundred  dol- 
lars valuation  or  one-fifth  of  one  per  cent,  and  when  we 
reach  an  assessment  of  nine  hundred  millions  in  tax- 
able property  it  shall  not  exceed  fifteen  cents  on  the 
hundred  dollars  valuation  or  three-twentieths  of  one 
per  cent. 

By  section  10  the  General  Assembly  can  not  im- 
pose taxes  upon  counties,  cities,  towns,  or  other  mu- 
nicipal corporations,  or  upon  the  inhabitants  thereof 
for  county,  city  or  other  municipal  purposes;  the  power 
to  assess  and  collect  such  taxes  must  be  delegated  un- 
der general  laws  to  the  respective  corporate  authori- 
ties. 

Section  11  of  this  article  10  of  tlie  Missouri  Con- 
stitution, adopted  November  30,  1875,  is  another  and 
further  limitation  on  the  taxing  power.  It  seeks  to 
make  its  limitations  effectual  in  two  ways:  First,  by 
limiting  the  rate  of  taxation ;  and  second,  by  prohibit- 
ing an  overvaluation  for  tax  purposes.  In  all  cases  of 
property  taxation  there  must  be  an  assessment  for 
state  and  county  purposes,  for  "All  property  subject 
to  taxation  shall  be  taxed  in  proportion  to  its  value." 
ProjDerty  assessed  at  a  given  value  for  state  taxation 
can  not  be  assessed  at  a  g'reater  valuation  for  any  mu- 
nicipal purpose,  either  city,  town,  township,  village  or 
any  other  municipal  purpose.  The  citizen  is  protected 
from  any  increase  of  taxes  arising  from  an  increase  of 
assessed  valuation  while  the  rate  remains  unchanged. 

The  annual  rates  for  county  purposes  are  limited 
by  the  amount  of  taxable  property  in  the  county;  the 
city  rates  are  controlled  by  the  number  of  inhabitants 
according  to  last  enumeration  by  last  United  States 
census,  or  by  the  last  authoritative  state  census. 

The  rates  for  county  purposes  are  thus:  In  coun- 
ties having  a  property  assessed  at  six  millions  or  less, 
fifty  cents  on  the  hundred  dollars  valuation ;   in   coun- 


Chap.  5]  Theories  of  Taxation.  95 

ties  having  an  assessed  valuation  of  over  six  millions 
and  under  ten  millions,  forty  cents;  over  ten  millions 
and  under  thirty  millions,  fifty  cents;  and  thirty  mil- 
lions or  more,  the  tax  must  not  exceed  thirty-five  cents 
on  the  hundred  dollars  valuation. 

For  city  and  town  purposes  the  annual  rate  ( regu- 
lated by  i)0]mlation)  shall  not  exceed  one  dollar  on  the 
hundred  dollars  valuation,  or  one  per  cent.  In  towns 
and  cities  of  less  than  thirty  thousand  inhabitants  and 
more  than  ten  thousand  inhabitants,  not  exceeding 
sixty  cents;  in  towns  of  less  than  ten  thousand  and 
more  than  one  thousand  inhabitants,  fifty  cents;  in 
towns  of  less  than  one  thousand  inhabitants,  not  ex- 
ceeding twenty-five  cents. 

For  schools,  not  exceeding  forty  cents  on  the  hun- 
dred dollars  valuation,  subject  to  be  increased  to  one 
dollar  on  the  hundred  dollars  valuation  in  districts 
formed  of  cities  and  towns,  and  in  other  districts  to 
sixty-five  cents  if  authorized  by  a  vote  of  taxpayers. 

The  values  in  all  cases  to  be  ascertained  and  de- 
termined by  the  last  assessment  for  state  and  county 
taxes  and  the  number  of  inhabitants  according  to  the 
last  census  by  the  United  States  or  under  the  authority 
of  some  state  statute.    Says  this  section : 

''Said  restrictions  as  to  rates  shall  apply  to  taxes 
of  every  kind  and  description,  whether  general  or  s]ie('- 
ial,  excei)t  taxes  to  pay  valid  indebtedness  now  existing 
or  bonds  which  may  be  issued  in  renewal  of  such  in- 
debtedness." 

Special  or  local  taxes  for  local  im])rovements  made 
on  or  adjoining  the  i)rox^erty  taxed  are  said  to  be  not 
included  in  these  restrictions  and  the  reasons  for  so 
holding  form  in  part  the  subject  of  this  chapter.  Sec- 
tion 18  of  article  10  is  a  still  further  limitation  on  the 
power  to  tax.  The  city  assessor  might  put  a  higher 
valuation  than   the    countv    assessor    on    the    same 


96  Law  of  Local  Taxation,  [Chap.  5 

property  and  this  would  increase  the  amount  of 
taxes.  This  is  guarded  against  by  the  provision 
that  the  assessment  for  other  purposes  shall  not 
exceed  that  for  state  and  county  purposes.  An  asses- 
sor in  one  county  may  assess  very  low ;  in  another 
county  he  may  assess  very  high.  A  cow  may  be  assess- 
ed in  one  county  (e.  g.,  where  they  still  resist  taxation 
to  pay  railway  bonds),  at  twenty  dollars;  in  another 
(where  some  city  dominates)  at  two  hundred  dollars. 
If  a  county  assessor  assess  too  high  or  too  low,  his  ac- 
tion may  be  corrected  by  a  county  board  of  equaliza- 
tion. Horses  may  be  assessed  at  ten  dollars  in  one  coun- 
ty and  at  fifty  in  another  county.  Hence,  this  state  board 
of  equalization,  to  make  values  as  near  as  possible  alike 
all  over  the  State.  The  rights  of  the  citizen  are  endan- 
gered in  two  ways :  First,  they  assess  the  largest  pos- 
sible rate ;  second,  they  make  the  largest  possible  valua- 
tion. The  Constitution  means  that  too  low  an  assess- 
ment shall  not  be  made  to  avoid  a  just  share  of  the 
burdens  of  the  state  government,  nor  shall  too  high  an 
assessment  be  made  to  increase  both  city,  county  and 
other  municipal  taxes  to  pay  for  what  may  be  the  wild 
extravagances  of  some  city  or  town.  It  restricts  city 
taxation.  It  renders  property  secure  to  that  extent  in 
the  cities  of  the  State. 

But  the  framers  of  this  Constitution  were  perfectly 
aware  that  all  these  limitations  on  the  taxing  power 
were  absolutely  futile  unless  the  debt-making  power 
be  also  limited;  hence,  section  12  of  the  Constitution 
of  Missouri  adopted  in  1875.  By  that  section  the 
power  of  municipalities  to  make  debts  is  curtailed.  No 
county,  city,  town,  township,  school  district  or  other 
political  corporation  or  subdivision  of  the  State  shall 
be  allowed  to  become  indebted  in  any  manner  or  for 
any  purpose  to  an  amount  exceeding  in  any  one  year 
the  income  and  revenue  provided  for  such  year,  with- 


Chap.  5J  Theories  of  Taxation.  97 

out  the  assent  of  two-tliirds  of  the  voters;  and  in  cases 
recjuiring  such  assent,  no  iuidebtedness  shall  be  allowed 
to  be  incurred  exceeding  five  per  cent  of  the  taxable 
property  according  to  the  last  assessment  for  state  pur- 
poses, and  this  five  per  cent  includes  existing  indebted- 
ness. 

At  the  time  of  the  adoption  of  the  Constitution  of 
1875,  we  had  numerous  decisions  of  our  state  Supreme 
Court  construing  various  provisions  of  our  state  con- 
stitution and  various  statutes  of  the  State,  and  defining 
and  limiting  this  special,  peculiar  power  of  taxation. 

LocJiWOod  and  Others  r.  City  of  St.  Louis,  is  the 
first  case  in  Missouri  on  local  taxation. 

The  General  Assembly  of  ^Missouri  passed  the  fol- 
lowing act,  approved  March  12,  1&49,  entitled  "An  Act 
to  provide  a  general  system  of  sewerage  in  the  City  of 
St.  Louis:" 
''Be  it  enacted  by  the  General  Assembly  of  the  State 

of  Missouri  as  follous: 

"Section  1.  The  mayor  and  city  council  of  St. 
Louis  shall  cause  by  ordinance,  the  city  to  ]:>e  laid  oft" 
into  districts  to  be  drained  by  principal  and  lateral  or 
tributary  sewers,  having  reference  to  a  general  plan  of 
drainage  by  sewers  for  the  whole  city,  and  number  and 
record  the  same. 

"Section  2.  Whenever  a  majority  of  the  owners 
of  real  estate  within  any  district  shall  petition  for  the 
construction  of  sewers  in  said  district,  the  city  council 
shall  have  power  by  ordinance  to  levy  and  collect  a 
special  tax  on  the  real  estate  within  said  district  so 
drained,  not  to  exceed  one  half  of  one  per  centum  i3er 
annum  on  the  assessed  value  of  said  real  estate,  for  the 
purpose  of  constructing  said  sewers,  which  tax  shall  be 
annually  levied  and  collected  as  other  city  taxes,  and 
shall  constitute  a  lien  on  the  real  estate  on  which  it  is 
assessed;  and  shall  not  be  repealed  or  altered  until  the 
debt  created  thereby  shall  have  been  fully  paid. 

7 


98  Law  of  Local  Taxation.  [ChaiD.  5 

"Section  3.  Whenever  a  petition  signed  as  afore- 
said is  presented  to  the  city  council,  they  shall  provide 
by  ordinance  for  the  letting  and  construction  of  the 
sewers,  or  such  parts  thereof  as  shall  be  necessary,  and 
may  from  time  to  time  extend,  enlarge  or  alter  the 
same  under  such  terms  and  on  such  conditions  as  they 
may  deem  necessary. 

''Section  4.  The  mayor  and  city  council,  upon  the 
presentation  of  a  petition  as  aforesaid,  may  borrow 
any  sum  of  money  necessary  for  the  construction  of  the 
sewers  in  any  district,  and  issue  the  bonds  of  the  city 
for  the  same,  payable  and  predicated  in  interest  and 
principal,  upon  the  tax  in  the  second  section  of  this  act 
mentioned. 

"Section  5.  All  moneys  collected  under  and  by 
virtue  of  this  act,  shall  be  applied  to  the  district  from 
which  it  is  so  collected,  and  to  no  other  purpose  or 
use." 

Pursuant  to  the  terms  of  this  act,  the  city  of  St. 
Louis  was  laid  off  into  districts  for  sewerage  pur- 
]joses,  and  among  others  was  the  district  including 
within  its  boundaries  St.  George's  Chapel  of  which  Mr. 
Lockwood  and  others  were  trustees.  Pursuant  to  a  pe- 
tition filed,  the  city  undertook  to  construct  and  con- 
structed the  sewers  in  question  and  levied  the  tax  of 
one-half  of  one  per  cent  per  annum.  St.  George 's  church 
refused  to  pay  the  tax  and  the  church  was  advertised 
for  sale  by  Mr.  Henry  Overstoltz,  comptroller  of  St. 
Louis.  The  trustees  of  the  church  applied  for  and  ob- 
tained a  temporary  injunction.  The  petition  sets  out 
that  these  special  taxes  for  the  year  1854  were  levied 
on  St.  George's  church  for  the  construction  of  sewers 
in  the  district  in  which  St.  George's  church  was  sit- 
uated. The  claim  made  (although  not  so  stated  in 
terms  in  the  petition)  was  that  the  property  being 
church  property  was  by  law  exempt  from  the  tax. 


Chap.  5J  Theories  of  Taxation.  99 

Tliere  were  two  questions  before  the  court :  First, 
would  injunction  lie  ?  second,  was  the  property  ex- 
empt from  the  tax.'  The  court  held  that  injunction 
would  lie  on  the  ground  that  a  court  of  equity  could 
prevent  a  cloud  on  the  title  to  real  estate,  but  the  court 
went  further  and  held  that  this  church  projierty  was 
not  exempt  from  this  tax  for  which  the  city  proposed  to 
sell  it.  The  judgment  below  dissolving  the  temporary 
injunction  was  affirmed. 

The  charter  of  St.  Louis  provided  that  the  city 
could  levy  taxes  "on  all  i)roperty  made  taxable  by  law 
for  state  purposes"  (Laws  of  Missouri  1850-1,  p.  158, 
sec.  2,  art.  3).  Revised  Statutes  of  1845,  page  927,  sec- 
tion 2,  provides : 

''Section  2.  The  following  subjects  are  exempt 
from  taxation:  .  .  .  Tenth,  churches,  chapels,  and 
other  ]mblic  buildings  for  religious  worship,  with  their 
furniture  and  equipments,  and  the  lands  appurtenant 
thereto,  and  used  therewith,  so  long  as  the  same  shall 
bo  used  for  that  purpose  only." 

The  special  act  of  18411,  supra,  authorizing  the 
sowers  in  controversy,  did  not  in  terms  exempt  church 
property.  The  question  was,  AVas  it  exempt  from  this 
tax  and  other  taxes  by  the  city  charter  referred  to 
above,  that  charter  authorizing  taxation  of  all  prop- 
erty "made  taxable  by  law  for  state  purposes?" 

The  court  below  held  this  church  land  not  exempt 
from  this  sewerage  tax;  the  court  above  affinned  the 
judgment.  In  rendering  the  judgment  the  court  define 
with  more  or  less  precision  the  nature  of  this  local  tax : 

"The  words  of  the  act  imply  no  such  exemption, 
and  the  princi]tle  on  which  church  ])roperty  is  exempted 
from  contributing  to  the  general  expenses  of  the  gov- 
ernment, either  state  or  municipal,  is  not  ai'tplicable  to 
a  special  assessment  of  this  kind.  The  question  has  been 
discussed  and  settled  in  other  states  in  cases  where  the 


100  Law  of  Loc.il  Taxation.  [Chap.  5 

claim  to  exemption  stood  under  the  hiw  on  perhaps 
stronger  ground  than  it  does  here." 

The  same  quotations  are  made  here  merely  to  indi- 
cate that  according  to  constitutional  law  then  in  force 
and  the  peculiar  characteristics  of  this  local  tax  it  was 
never  justified  unless  there  was  a  benefit  equal  to  or 
greater  than  the  tax.  The  statutes,  the  Constitution  and 
judicial  decisions  (which  latter  became  a  part  of  the 
Constitution  the  same  as  if  copied  into  it)  gave  it  these 
characteristics  and  they  had  the  same  force  as  if  cop- 
ied into  the  Constitution.  ' '  But  what  is  '  The  principle 
on  which  church  property  is  exempted  from  contribut- 
ing to  the  general  expenses  of  the  government  either 
state  or  municipal?' 

"If  an  improvement  is  to  be  made,  the  benefit  of 
which  is  local,  it  is  but  just  that  the  property  benefited 
should  bear  the  burden.  A^^iile  the  few  ought  not  to  be 
taxed  for  the  benefit  of  the  whole,  the  whole  ought  not 
to  be  taxed  for  the  few.  A  single  township  in  a  county 
ought  not  to  bear  the  whole  county  expenses,  neither 
ought  the  whole  county  to  be  taxed  for  the  benefit  of  a 
single  township;  and  the  same  principle  requires  that 
taxation  for  a  local  object,  beneficial  only  to  a  portion 
of  a  town  or  city,  should  be  upon  that  part  only.  Gen- 
eral taxation  for  a  mere  local  purj^ose  is  unjust ;  it  bur- 
dens those  not  benefited,  and  benefits  those  who  are  ex- 
empt from  the  burden. "    [24  Mo.  22.] 

"To  pay  for  opening  a  street  in  proportion  to  the 
benefit  to  be  derived  from  it,  was  no  burden  and  there- 
fore no  tax  within  the  meaning  of  the  law."  This  lo- 
cal tax  always  has  a  benefit  with  it  equal  to  or  greater 
than  the  tax. 

In  Northern  Liberties  v.  St.  John's  Church,  13 
Penn.,  at  107,  referred  to  above,  the  court  says : 

''Boroughs  and  cities  are  part  of  the  machineiy 
through  whose  agency  government  is  conducted.   They 


Chap.  5]  TiiEOHiEs  of  Taxation.  101 

are  established  for  the  purpose  of  conserving  tlie  power 
of  society  and  they  are  within  the  control  of  the  gov- 
ernment which  may  alter  and  reform  their  organiza- 
tion. Hence,  they  may  and  do  lay  taxes  for  public  pur- 
poses and  the  public  good.  They  maintain  a  })olice  and 
punisli  offenders  sunnnarily  who  l)reak  the  laws  of  the 
State  in  certain  cases.  This  can  not  be  done  without 
the  imposition  of  ])ublic  taxes,  which  they  are  author- 
ized to  levy  and  collect.  A  tax  was  anciently  defined  to 
be  a  certain  aid,  subsidy  or  sui)ply  granted  by  the  Com- 
mons of  Great  Britain,  constituting  the  king's  revenue 
(4  Inst.,  216-233).  As  the  name  itself  im])orts  from  its 
derivation,  it  means  tribute  and  belonged  to  the  king's 
treasury.  I  think  that  the  common  mind  everv^iere 
has  taken  in  the  understanding  that  taxes  are  a  public 
imposition,  levied  by  authority  of  the  government  for 
the  purpose  of  carrying  on  the  government  in  all  its 
machinery  and  operations;  that  they  are  imposed  for 
a  public  purpose;  whereas,  municipal  charges  are  of- 
ten for  the  benefit  lot-holders  on  a  part  of  the  street  and 
the  assessment,  as  in  this  instance,  induced  by  the  re- 
quest made  known  according  to  their  charter,  of  a  ma- 
jority of  the  inhabitants.  The  assessment  or  charge  is 
the  equivalent  from  the  owner  for  the  improvement 
made  to  the  value  of  the  property.  Such  assessments 
are  not  collectible  like  public  taxes,  but  generally,  as 
in  this  instance,  a  particular  mode  of  recovering  the 
charge  is  pointed  out  by  the  law.  It  is  evident  from 
all  the  acts  of  Assembly  in  relation  to  this  incorporated 
district,  that  the  Legislature  had  in  view  the  difference 
between  taxes  properly  so  denominated  and  charges  or 
assessments  for  the  improvement  of  particular  streets 
as  the  advance  of  population  required  such  improve- 
ments." 

This  exenqition  law  intends  to  exempt  this  church 
property  from  taxes  that  are  burdens.    This  tax  is  for 


102  Law  of  Local  Taxation.  [Cliap.  5 

a  benefit  conferred  on  the  property.  This  is  the  judic- 
ial stamp  put  on  this  kind  of  tax.  Other  taxes  are  bur- 
dens and  the  church  is  relieved  from  them.  This  tax  is 
a  benefit  and  the  church  was  not  to  be  relieved  from  it. 
This  decision  interprets  the  legislative  mind  or  inten- 
tion as  to  what  this  local  tax  is.  The  property  taxed  is 
benefited  to  an  extent  equal  to  or  greater  than  the 
amount  of  the  tax. 

''The  assessment  or  charge  is  the  equivalent  from 
the  owner  for  the  improvement  made  to  the  value  of 
the  property."     [13  Penn.  107,  supra.] 

Lockivood  V.  St.  Louis  was  decided  in  1856,  nine- 
teen years  before  the  adoption  of  the  present  Missouri 
Constitution  in  1875. 

Neivhy  v.  Platte  County  was  decided  in  1857,  eigh- 
teen years  before  our  present  Missouri  Constitution 
was  adopted.  The  case  was  tried  on  an  agreed  state- 
ment of  facts.  The  road  ran  "through  the  plaintiff's 
land  122  poles  and  occupied  one  and  one-half  acres  of 
land  worth  fifteen  dollars  per  acre."  The  court  con- 
tinuing say,  "But  it  was  not  admitted  that  the  road 
was  any  benefit  to  the  party"  (p.  275).  "As  to  the 
proper  rule  to  compute  the  benefits  [is  this  a  legislative 
function]  in  cases  of  this  character,  it  may  not  be  im- 
proper, as  the  case  is  to  be  remanded  for  further  pro- 
ceedings, to  remark  that  the  Supreme  Court  of  Massa- 
chusetts, in  the  case  of  Meacham  v.  The  Fitzhugh  Rail- 
road Company,  4  Cushing  392  [should  be  291]  declared 
that  the  benefits  to  be  charged  against  the  adjacent 
landowners  and  deducted  from  the  compensation  to  be 
paid  to  them,  were  the  direct  and  peculiar  benefits  that 
would  result  to  them  in  particular,  and  not  the  general 
benefit  that  they  would  derive  in  common  with  other 
landowners  from  the  building  of  the  road;  and  this 
seems  to  be  substantially  the  principle  adopted  by  our 
IjCgislature  as  just  and  equitable  in  the  St.  Louis  im- 


Chap.  5]  Theories  of  Taxation.  103 

provement  act,  before  referred  to,  and  ought  perhaps 
to  be  followed  in  the  eoniitruction  of  this  provision  of 
the  road  law." 

Meacham  v.  Fitzhugh  Railroad  Company  has  been 
quoted  from  heretofore  in  this  paper.  The  tax  can  be 
equal  to  (and  not  beyond  or  in  excess  of)  the  sjjecial 
and  peculiar  benefit  not  enjoyed  by  the  owner  of  the 
property  taxed  in  common  with  other  property  in  the 
vicinity.  In  this  local  taxation,  to  retain  the  condemna- 
tion money  or  any  jiart  of  it  for  a  general  benefit,  is  in 
violation  of  the  rule  of  constitutional  law  that  "Pri- 
vate ])roperty  shall  not  be  taken  for  public  use  without 
just  compensation. ' ' 

"If  the  state  government  possessed  no  authority 
over  private  property  except  that  of  taking  it  for  the 
public  use  upon  rendering  the  owner  a  just  compensa- 
tion, it  would  seem  that  under  this  provision,  the  own- 
er would  be  entitled  to  the  full  money  value  of  his  prop- 
erty without  any  deduction,"  i.  e.,  a  tax  cannot  be  lev- 
ied. 

Garrett  v.  St.  Louis,  25  Mo.  505,  referred  to,  is  a 
case  of  local  taxation  decided  in  1857.  There  was  no 
complaint  of  any  error  in  the  exercise  of  the  power  of 
eminent  domain.  The  error  complained  of  was  in  the 
exercise  of  the  taxing  power.  Not  only  must  there  be  a 
benefit  in  the  exercise  of  this  taxing  power,  but  that 
benefit  must  be  special,  peculiar,  exceptive. 

In  Louisiana  £  Frankford  Plank  Road  Company 
V.  Pickett,  25  Mo.  535,  the  statute  was  thus  (sec.  8  of 
an  act  to  authorize  the  formation  of  associations  to  con- 
struct ])lankroads  and  macadamized  roads) :  After  \)yo- 
viding  that  the  road  directors  or  authorities  shall  first 
endeavor  to  agi'ee  upon  the  price  of  the  land  if  they 
fail  to  do  so  then  the  road  authorities  go  before  a  jus- 
tice of  the  peace,  who  issues  and  causes  to  be  served 
on  the  landowner  a  notice  to  appear  before  him  in  ten 


104  Law  of  Local  Taxation.  [Chap.  5 

days  to  show  cause  why  commissioners  shall  not  be  ap- 
pointed to  fix  the  damages,  and  on  the  return  day  if  the 
parties  still  fail  to  agree,  then  the  justice  selects  a  jury 
of  five  disinterested  landowners  (if  the  parties  them- 
selves can  not  agree  on  the  men).  This  jury  shall  take 
an  oath  and  tliey  are  bound  to  '*  faithfully  and  mipar- 
tially  assess  the  damages  if  any,"  and  it  is  made  their 
duty  to  *S'iew  the  lands  upon  which  damages  are 
claimed,  and  they  shall  determine  the  amount  of  the 
same,  duly  considering  the  advantacfes  of  said  road  to 
said  owner,"  and  shall  report  to  the  justice,  who  enters 
judgment  from  which  either  party  may  apjDeal,  etc. 

Under  the  above  statute,  in  condemnation  proceed- 
ings involving,  however,  both  the  power  of  eminent 
domain  and  the  taxing  power,  the  court  gave  this  in- 
struction (25  Mo.  537) : 

"The  juiy^  shall  go  ujion  the  land  over  which  the 
road  is  proposed  to  run,  and  shall  assess  the  damages 
sustained  by  said  Pickett,  taking  into  consideration  the 
advantages,  if  any^  which  said  road  may  he  to  said 
Pickett,  and  the  jury  shall  make  out  in  w'riting  their 
verdict  and  all  shall  sign  it,  and  it  shall  be  sealed  and 
delivered  to  the  clerk  by  one  of  the  jurors."  After  re- 
m^arking  that  the  constitutionality  of  the  law  had  been 
decided  in  Neivby  v.  Platte  County  the  court  says  of 
this  instruction: 

"The  instruction  given  by  the  court  was  erroneous 
in  not  restricting  the  jury  to  such  direct  and  peculiar 
benefits  or  increase  of  value  as  were  occasioned  to  that 
part  of  Pickett's  land  not  taken  for  the  road,  and  di- 
recting them  to  discard  from  their  consideration  any 
general  benefit  or  increase  of  value  received  by  such 
land  in  common  with  other  lands  in  the  neighborhood. 
This  has  been  determined  to  be  the  proper  construction 
of  this  and  similar  statutes."  [25  Mo.  537.]  Judge 
Richardson  vigorously  dissented  on   grounds   directly 


Chap.  5]  Theories  of  Taxation.  105 

opposite  to  the  reasons  set  out  by  the  court  in  Newby  u. 
Platte  County  and  Garrett  v.  St.  Louis,  and  oases  cited 
in  tlie  opinions  in  the  two  cases. 

In  the  case  of  the  Pacific  Railroad  v.  Chrystal,  '2') 
Mo.  544,  the  statute  was  tlius  (Session  Acts  of  Missouri 
1849,  p.  219,  sec.  9) :  Section  9  provides  that  in  cer- 
tain events  not  necessary  to  be  here  mentioned  the 
judge  of  the  circuit  court  of  the  county  where  the  lands 
are  situated  "Shall  appoint  three  disinterested  citizens 
of  the  county  to  view  said  lands  who  shall  take  into  con- 
sideration the  value  of  the  land  and  the  advantages  and 
disadvantages  of  the  road  to  the  same,  and  shall  re- 
port," etc.  Judge  Napton,  in  rendering  the  oynnion 
of  the  court,  says  (p.  546) : 

"The  order  of  the  circuit  court  to  the  commission- 
ers appointed  to  assess  the  damages  to  Chrystal  's  land 
was  that  said  commissioners,  in  forming  their  estimate, 
shall  make  due  allowance  or  deduction  for  any  advan- 
tages which  the  said  William  Chrystal  will  derive  from 
the  said  Pacific  railroad,  but  not  allowing  him  the  ben- 
efit of  any  rise  in  land  in  consequence  of  the  surs^ey. " 
[Here  is  the  taxing  power.] 

The  order  of  the  court  was  not  excepted  to  but  the 
court  took  the  motion  to  set  aside  the  report  of  com- 
missioners as  in  the  nature  of  a  motion  in  arrest,  and 
accordingly  reviewed  the  action  of  the  coujri  below  in 
that  regard.    The  court  said : 

"In  the  case  of  Newhg  v.  Platte  County  (ante.  p. 
258)  this  court  held  that  'the  benefits  to  be  charged  the 
landowners  whose  lands  are  taken  for  a  railroad  and 
deducted  from  the  compensation  to  be  allowed  for  the 
value  of  the  land  taken  and  the  injuiy  resulting  to  ad- 
joining land,  must  be  the  direct  and  peculiar  benefits 
which  result  to  them  in  particular,  and  not  the  general 
benefits  they  derive  in  common  nith  other  landoH--ners 
in  the  vicinity  from  the  building  of  the  road.'  [Here  is 
the  taxing  power.] 


106  Law  of  Local  Taxation.  [Chap.  5 

"The  value  of  the  land  taken  means  its  actual 
value  indejiendent  of  the  location  of  the  road.  The  dis- 
advantages spo^veu  of  by  the  act  are  the  injuries  aris- 
ing from  the  taking  of  only  a  part  of  a  tract,  which, 
from  a  variety  of  causes,  may  more  or  less  impair  the 
value  of  the  part  left,  or  entirely  destroy  its  value. 

"It  is  manifest  that  the  order  of  the  court  to  the 
commissioners  did  not  conform  to  these  principles.  The 
report  should  therefore  have  been  set  aside  and  a  sec- 
ond assessment  made  with  j^roper  instructions." 

Inhabitants  of  Palmyra  v.  Morton,  25  Mo.  593,  is 
a  case  of  local  taxation,  but  even  this  case  proceeds  on 
the  theory  that  these  local  taxes  are  founded  on  local 
benefits.  Says  Richardson,  Judge  (who  dissents  from 
the  doctrine  that  the  benefits  must  be  special,  peculiar, 
exceptive),  p.  596: 

"So,  in  towns,  wells  and  cisterns  are  dug  and  kept 
in  repair  at  the  expense  of  particular  limits;  and  in 
cities  public  parks  and  wharves  are  established,  streets 
are  opened  and  paved,  sewers  are  made,  water  pipes 
are  laid,  and  the  expenses  thereof  are  charged  to  the 
property-holders  benefited  thereby.  It  is  the  exercise 
of  the  same  power  that  authorizes  districts,  counties  or 
towns  to  subscribe  for  public  improvements." 

"The  expenses  thereof  are  charged  to  the  parties 
benefited  thereby."  The  benefit  is  equal  to  or  less  than 
the  cost.  Judge  Richardson  in  his  dissenting  opinion 
in  Louisiana  S  Frankford  Plank  Road  Co.  v.  Pickett, 
25  Mo.  535,  at  538-9,  admits  that  this  particular  kind  of 
tax,  this  local  tax,  must  be  a  benefit.  He  only  contends 
for  a  general  benefit.  He  denies  that  it  is  necessary 
to  have  this  special,  peculiar,  exceptive  benefit.  But 
these  expenses  are  charged  to  the  parties  benefited. 
Some  persons  are  then  benefited.  They  ought  to  be 
charged  to  an  extent  equal  to  the  cost  if  the  benefit  be 
so  great.      The  expenses  ought  to  be  charged  to  the 


Chap.  5]  Theories  of  Taxation.  107 

"parties  benefited."  If  a  ])erson  then  bo  not  benefited, 
he  ought  not  to  be  charged.  He  ought  not  to  be  charged 
to  an  extent  in  excess  of  his  benefits.  He  ouglit  not  to 
be  charged  to  an  extent  in  excess  of  the  cost. 

The  sovereign  power  ouglit  to  be  so  fai-  held  a 
trustee  for  the  citizen  as  not  to  make  a  profit  from  pub- 
lic work,  from  him  who  pays  for  it.  The  citizen  is  help- 
less. He  is  not  liable  on  any  contract  express  or  im- 
plied. Under  the  rule  that  this  tax  can  not  be  more 
than  the  benefit,  the  tax  is  indeed  not  a  burden.  Other 
forms  of  taxation  were  indeed  burdens  and  they  were 
limited  in  the  Constitution  of  1875.  The  rule  was  ex- 
pressed in  two  forms:  First,  under  exemption  laws, 
and  second,  under  taxation  laws  where  the  tax  is  held 
to  be  "Not  a  tax  on  property  but  a  tax  on  benefits." 

The  church  trustees  were  exempt  from  taxes  that 
were  burdens.  From  taxes  that  were  benefits  they 
were  not  exempt.  For  the  church  trustees  to  pay  for 
this  benefit  conferred  "Is  consistent  with  science  and 
religion."  The  law  only  intends  to  exem])t  the  church 
from  a  burden.  This  judicial  interpretation  of  this 
sewer  tax  law,  this  exemption  law,  becomes  a  part  of  it 
the  same  as  if  incorporated  into  it.  It  was  held  to  be 
constitutional  and  it  was  a  ]iart  of  the  Constitution  the 
same  as  if  copied  into  it. 

In  Egyptian  Levee  Company  v.  Hardiu.  27  Mo. 
495,  although  "The  defense  was  that  the  act  of  the  leg- 
islature was  unconstitutional  because  the  land  was 
taxed  by  the  acre  and  not  in  proportion  to  its  value" 
(p.  496),  yet  the  special,  peculiar  character  of  a  local 
tax  is  pointed  out.  It  is  founded  on  l>enefit.  It  is 
based  on  the  fact  that  the  impost  is  no  burden,  and 
Northern  Liberties  v.  St.  John's  Church,  13  Pa,  107,  is 
quoted  from  and  apin'oved  (pp,  497-S), andStafe  v. New 
Orleans  Nariqatiou  Co.,  11  j\rart.  309,  quoted  from  and 
approved,  wherein  certain  charges  must  be  "Paid  by 


lOS  Law  of  Local  Taxation.  [Chap.  5 

such  individuals  only  who  enjoy  the  advantages  re- 
sulting from  such  labor  and  expense,"  and  a  like  con- 
struction is  given  to  an  act  of  Congress  requiring  lands 
to  be  exempted  from  taxation  for  a  number  of  years 
(five)  and  this  act  did  not  exempt  lands  bordering  on 
the  Mississippi  river  from  a  levee  tax  to  preserve  the 
lands  and  benefit  them.  The  tax  was  not  a  burden. 
This  tax  was  further  defined  in  other  judicial  decisions 
up  to  the  time  of  the  adoption  of  the  Missouri  Constitu- 
tion of  1875.  This  is  specially  noticeable  in  City  of 
St.  Louis  to  use  v.  Allen,  53  Mo.  44  (quoted  from  here- 
tofore and  not  now  repeated),  and  McCormack  v. 
PatcJiin,  53  Mo.  33. 

''The  whole  theory  of  local  taxation  or  assess- 
ments is,  that  the  improvements,  for  which  they  are 
levied,  afford  a  remuneration  in  the  way  of  benefits. 
A  law  which  would  attempt  to  make  one  i^erson  or  a 
given  number  of  persons,  under  the  guise  of  local  as- 
sessments, pay  a  general  revenue  for  the  public  at 
large,  would  not  be  an  exercise  of  the  taxing  power, 
but  an  act  of  confiscation.  In  effect,  it  would  be  trans- 
ferring the  property  of  one  individual  to  another. 
These  are  legal  truisms  which  have  long  been  enter- 
tained and  firmly  established"  (p.  36). 

These  decisions  in  53  Mo.  were  rendered  in  1873, 
just  two  years  before  the  Constitution  of  1875  was 
framed.  These  cases  were  then  published  and  were 
known  to  the  members  of  the  convention.  Washing- 
ton Adams  was  a  member  of  the  court  then.  The  peo- 
ple of  the  State  desired  him  to  resign  his  position  on 
the  Supreme  Court  and  to  become  a  member  of  the  con- 
vention to  carry  out  his  ideas  of  constitutional  law  as 
to  the  safety  of  private  property  from  being  damaged 
for  public  use  without  just  compensation. 

Thurston  v.  St.  Joseph,  51  Mo.  510^  was  decided  in 
1873.     The  idea  that  this  local  tax  is  for  a  benefit  con- 


Chap.  5]  Theories  of  Taxation.  109 

f erred  on  the  property  taxed  and  in  no  case  can  exceed 
the  benefit  is  illustrated  in  Farrar  et  al.  v.  The  City  of 
St.  Louis,  80  Mo.  379,  et  seq. 

Article  10  has  been  quoted  in  full  on.  preceding 
pages.  The  case  supra  is  one  on  local  taxation.  After 
quoting  sections  of  article  10,  the  court,  on  p.  386,  et 
seq.,  say : 

"If,  as  contended  for  by  plaintiff's  counsel,  the 
'taxes'  and  'taxation'  referred  to  in  the  above  sections, 
embrace  and  were  intended  to  embrace,  special  assess- 
ments made  to  i)ay  for  local  improvements,  then  it 
would  follow  that  the  said  charter  provisions  of  the 
city,  as  well  as  ordinance  No.  12041,  the  validity  of 
which  is  questioned  in  this  suit,  would  fall  because  of 
conflict  with  the  Constitution.  But  we  are  of  the  opin- 
ion that  charges  for  the  cost  of  a  local  improvement 
against  the  property  benefited  by  the  improveirient,  al- 
though an  exercise  of  the  taxing  power,  are  not  such 
taxes  as  are  referred  to  in  the  various  clauses  of  the 
Constitution  above  quoted,  and  that  they  are  neither 
embraced,  nor  intended  to  be  embraced  in  them.  [What 
are  the  reasons  for  omission  is  in  part  the  i)urpose  of 
this  chapter.]  Said  article  10  of  the  Constitution 
is  devoted  to  'Revenue  and  taxation,'  and  the  tax- 
ation there  provided  for  and  restricted  relates  to  such 
taxation  as  is  intended  to  raise  revenue  to  l^e  paid  into 
the  respective  treasuries  of  the  State,  county  or  munici- 
pality, and  to  be  disbursed  therefrom  for  state,  county 
or  nmnicipal  purposes.  At  the  time  the  Constitution  of 
1875  was  being  framed,  the  validity  of  si>ecial  assess- 
ments for  the  i)ayment  of  the  cost  of  local  improve- 
ments had  been  sustained  in  numerous  rulings  of  this 
court,  the  [principle  underlying  these  adjudications  be- 
ing that  the  property  benefited  by  a  local  improvement 
icas  increased  in  value  as  much  as  it  is  required  to  pay 
for  the  itnprovement.    These  rulings  were  made  under 


110  Law  of  Local  Taxation.  [Chap.  5 

the  constitutions  of  1820  and  1865,  both  of  which  con- 
tained the  same  provision  that  is  contained  in  section 
4  of  the  present  Constitution,  viz. :  '  That  all  property 
subject  to  taxation,  shall  be  taxed  in  proportion  to  its 
value.'  " 

The  cases  in  the  Supreme  Court  were  then  re- 
viewed. The  first  case  reviewed  is  that  of  Lockwood 
et  al.  V.  St.  Louis,  24  Mo.  20,  where  the  property  was 
taxed  for  a  sewer  one-half  of  one  per  cent  of  its  value 
in  ]n'ecise  accordance  with  the  constitutional  provision 
quoted,  "That  all  property  subject  to  taxation  shall  be 
taxed  in  proportion  to  its  value."  The  case  is  referred 
to  as  illustrating  the  difference  between  a  general  tax 
and  a  local  tax.  A  general  tax  is  a  burden,  whereas 
a  local  tax  is  a  benefit.  The  cases  of  Novhy  v.  Platte 
County  and  Garrett  v.  St.  Louis  are  referred  to  where- 
in the  doctrine  is  established,  not  only  that  there  must 
be  a  benefit  but  that  a  general  benefit  will  not  suffice; 
the  benefit  must  be  special,  peculiar,  exceptive,  not  en- 
joyed by  the  landowner  in  common  with  his  neighbors 
about  him.  Otherwise  this  taxation  law  takes  private 
property  for  public  use  without  just  compensation. 
Continuing  the  court  says,  p.  390: 

'*It  was  well  known  to  the  members  of  the  conven- 
tion who  framed  the  Constitution  of  1875  that  accord- 
ing to  the  rulings  of  this  court  the  words  'Taxes'  and 
'Taxation'  as  used  in  sections  of  the  constitutions  of 
1820  and  1865,  identical  with  said  section  4,  did  not  em- 
brace special  assessments  or  taxes  imposed  to  pay  for 
local  improvements  for  benefits  thereby  conferred  on 
the  property  assessed  or  taxed;  and  if  they  intended 
to  change  the  rule  of  interpretation  in  this  respect,  and 
embrace  special  assessments  in  the  restrictions  con- 
tained in  said  section  11,  apt  words  expressive  of  such 
intention  and  accomplishing  such  object  would  doubt- 
less have  been  used.    No  such  words  were  used,  nor  are 


Cliap.  5J  Theories  of  Taxation.  Ill 

they  necessarily  implied  from  the  expression  contained 
in  said  section,  that  'Said  restrictions  as  to  rates  shall 
apply  to  taxes  of  every  kind  and  description,'  for  in 
the  case  of  Sheehan  v.  The  Good  Samaritan  Hospital, 
50  Mo.  155,  where  by  statute,  the  property  of  the  hos- 
l)ital  was  expressly  'Exem})t  from  taxation  of  every 
kind,'  it  was  held  that  the  i)i-operty  was  liable  to  a  spec- 
ial assessment  against  it  for  the  improvement  of  a 
street  on  its  front,  notwithstanding  by  statute  it  was 
exempt  from  taxation  of  'every  kind,'  the  court  hold- 
ing that  the  taxation  from  which  it  was  exempted  was 
for  the  ordinary  taxes  for  the  jiurpose  of  revenue,  and 
that  the  tax-bill  sued  on  is  not  regarded  as  a  tax,  but 
as  an  assessment  for  improvements,  and  is  not  consid- 
ered a  burden,  but  as  an  equivalent  or  compensation  for 
the  enhanced  value  which  the  property  derives  from  the 
improvement." 

Says  Judge  Adams  in  rendering  the  unanimous 
opinion  of  the  Supreme  Court  in  State  ex  rel.  Chou- 
teau et  al.  V.  Leffingwell  et  al.,  54  Mo.  458,  at  474  (A.  D. 
1873) :  *' Local  assessments  are  constitutional  only 
when  imposed  to  pay  for  local  improvements  conferr- 
ing speckd  benefits."  Hence,  there  was  no  necessity 
to  change  the  Constitution  in  this  respect. 

The  local  assessment  for  work  conferring  no  special 
benefit  is  unconstitutional  (it  was  in  1873)  because  it 
takes  private  property  for  public  use  without  just  com- 
pensation. This  appears  in  the  unanimous  opinion  of 
the  court.  Judge  Adams  was  a  member  of  the  consti- 
tutional convention;  so  was  Judge  Norton  who  wrote 
the  opinion  in  Farrar  v.  St.  Louis,  quoted  from  above. 
Judge  Black  was  a  member  of  that  convention.  It  em- 
braced the  ablest  jurists  of  the  State.  I  forbear  to 
name  all  of  them  whose  names  are  attached  to  the  Con- 
stitution of  1875,  in  Revised  Statutes  of  ^lissouri  of 
1879,  vol.  1,  pp.  xci,  xcii  and  xciii;  Revised  Statutes  of 


112  L-^w  OF  Local  Tax.\tion.  [Chap,  5 

Missouri  1889,  vol.  1,  pp.  112-3-4;  Revised  Statutes  of 
Missouri  1899,  vol.  1,  pp.  120-1. 

Article  10  of  the  Missouri  Constitution  of  1875  in- 
troduces a  series  of  reforms  in  taxation.  The  state  tax 
is  twenty  cents  on  the  one  hundred  dollars  valuation. 
This  is  one-:&fth  of  one  per  cent.  There  was  no  limit 
before,  and  hence  the  tax  might  have  been  one  hundred 
l)er  cent.  Is  it  possible  that  the  convention  would  limit 
the  state  tax  to  one-fifth  of  one  per  cent  for  all  the  pur- 
poses of  the  state  government,  and  yet  in  any  city, 
town  or  village  one  hundred  per  cent  or  five  hundred 
times  as  much  might  be  levied  to  build  a  sidewalk  or 
curb  a  street  or  pave  it,  and  that,  too,  without  any  ben- 
efit whatever  and  against  the  owner's  will?  Did  the 
convention  consider  when  they  proposed  this  constitu- 
tion—did the  people  of  this  State  when  they  adopted 
that  constitution  consider  or  sup])Ose  that  there  was 
no  limit  to  special  taxes,  or  did  they  both  consider  that 
special  taxes  were  already  limited  by  that  provision  of 
the  state  Constitution,  that  "Private  property  shall  not 
be  taken  or  applied  to  public  use  without  just  compen- 
sation"— that  local  taxes  were  constitutional  only 
when  imposed  to  pay  for  public  improvements  conifer- 
ring  special,  peculiar,  exceptive  benefits?  They  even 
changed,  in  the  interest  of  the  property-own.er,  this 
provision  by  enacting  that  private  property  shall  nei- 
ther be  taken  nor  damaged  for  public  use  without  just 
compensation.  And  for  either  they  adopted  the  rule, 
"Cash  in  advance." 

The  burdens  of  taxation  are  lessened— made  uni- 
form by  section  2,  article  10.  An  assessment  made  for 
state  purposes  can  not  be  exceeded  by  any  city,  town 
or  village  assessment.  It  may  be  less;  it  never  can  be 
more.  The  county  tax  must  not  exceed  fifty  cents  on 
the  hundred  dollars  valuation  or  one-half  of  one  per 
cent  per  annum.     The  largest  municipal  tax  is  one  per 


Chap.  5]  Theories  of  Taxation.  113 

cent;  the  smallest  is  for  villages,  one-fourth  of  one  per 
cent.  While  the  rate  remains  constant,  the  amount  of 
municipal  tax  can  not  be  increased  by  a  larger  assess- 
ment.   Everj^where  is  a  limitation  of  the  amount  of  tax. 

Did  the  convention  by  proposing  this  Constitution, 
did  the  ])eoi)le  of  the  State  of  Missouri  by  ado])ting  it, 
intend  that  the  whole  state  tax  should  be  only  one-fifth 
of  one  i)er  cent  for  conducting  the  state  government; 
the  whole  county  tax  for  conducting  the  county  govern- 
ment should  be  one-half  of  one  per  cent,  only  making 
a  total  tax  of  not  to  exceed  seven-tenths  of  one  per  cent 
for  the  state  and  county  government  and  >'et  in  any 
city,  town  or  village,  one  hundred  per  cent  (one  hun- 
dred and  forty-three  times  as  much  as  for  both)  might 
be  levied  for  a  sidewalk  or  for  paving  or  for  a  sewer 
(perhaps  in  a  cow  pasture)  when  the  work  adds  noth- 
ing to  the  value  of  the  land  or  is  in  excess  of  the  value 
of  the  land  ? 

Said  one  member  of  this  convention  in  rendering 
the  unanimous  opinion  of  the  Supreme  Court  of  Mis- 
souri in  State  ex  rel.  v.  Leffingnell,  54  Mo.  457,  loc.  cit. 
474  (two  years  before  the  convention  met):  "Local 
assessments  are  constitutional  only  when  imposed  to 
pay  for  local  improvements  conferring  special  bene- 
fits/' 

Why  make  a  change?  Up  to  the  time  of  the  adop- 
tion of  the  Constitution  of  1875  there  never  had  been 
a  decision  of  any  court  in  the  State  (of  which  this  writ- 
er is  aware)  upholding  the  constitutional  validity  of  a 
local  tax  imposed  on  local  property  not  benefited.  In 
the  earlier  cases  under  the  Constitution  of  1820  there 
was  absolutely  no  difference  of  o]iinion.  The  minority 
of  the  court  held  that  a  general  benefit  was  sufficient. 
But  a  benefit  was  necessary.  Indeed  the  tax  was  char- 
acterized as  "a  tax  on  benefits."  The  very  language 
implies  that  there  must  be  "Benefits"  to  be  taxed.     A 


114  Law  of  Local  Taxation.  [Chap.  5 

tax  on  property  implies  that  there  is  property  to  be 
taxed,  the  tax  law  can  not  create  the  property  nor  can 
it  create  the  benefit.  The  tax  law  can  not  determine 
that  the  citizen  has  property  nor  can  it  determine  that 
he  has  benefits. 

Take  the  case  of  Zoeller  v.  Kellogg,  4  Mo.  App. 
163.  The  judges  there  held  the  tax-bill  unconstitu- 
tional, but  the  case  was  subsequently  overruled,  and  I 
treat  the  case  as  holding  that  the  tax-bill  was  constitu- 
tionally valid,  as  the  judge  who  rendered  the  opinion 
concurred  in  overruling  it.  Let  us  compare.  In  that 
case,  according  to  the  finding  of  the  court,  the  lot  was 
worth,  after  all  the  improvement  was  put  in  with  all  the 
value  thereby  arlrlorl  ^n  the  land,  $1,025.  The  tax-bills 
in  judgment  were  $1,688.  Here  was  a  tax  of  one  hundred 
and  sixty-three  per  cent  on  the  benefited  land  with  all 
accrued  benefits  added.  We  are  not  informed  what  this 
$1,025  land  was  worth  before  it  received  this  $1,688 
benefit.  If  we  assume  it  to  have  been  quadrupled  in 
value,  then  it  must  have  been  worth  in  round  numbers 
$250;  and  for  this  $775  benefit,  the  owner  must  have 
paid  $1,688  and  costs,  or  lose  his  $250  property.  The 
decision  as  rendered  below  was  reversed,  but  it  ought, 
according  to  subsequent  decisions,  to  have  sustained 
the  tax-bills.  In  the  Missouri  Constitution  of  1875  state 
taxes  to  carry  on  the  state  government  were  limited  to 
twenty  cents  on  the  $100  valuation,  or  one-fifth  of  one 
per  cent.  The  tax  on  the  St.  Louis  lot  was  815  times  as 
much.  The  Missouri  Constitution  of  1875  provided 
that  when  the  taxable  property  of  the  State  should 
reach  $900,000,000,  then  the  state  tax  should  be  fifteen 
cents  on  the  $100  valuation,  or  three-twentieths  of  one 
per  cent.  This  special  tax  would  have  paid  all  state 
taxes  at  this  rate  for  1,087  years.  This  special  tax  is 
1,087  times  as  much  as  it  takes  now  to  run  the  state 
government.     Think  of  it !     This  local  tax  in  1873  on 


(."hap.  5]  Theories  of  Taxation.  115 

this  St.  Louis  lot  would  (if  this  judguient  had  been 
paid)  pay  all  the  state  taxes  on  that  lot  to  su])port  the 
state  govenmient  for  eight  hundred  and  fifteen  years 
and  with  our  larger  assessment  it  would  pay  all  state 
taxes  for  1,087  years.  If  the  assessment  had  been  made 
for  state  taxes  at  forty  per  cent  of  the  actual  value  for 
taxation,  then  this  local  tax  on  this  St.  Louis  property 
in  judgment  in  1877  w^ould  have  paid  all  state  taxes  on 
tliis  lot  for  2,037  years,  and  when  the  state  tax  was  re- 
duced to  fifteen  cents  on  the  $100  valuation,  would  have 
paid  all  state  taxes  for  2,717  years.  Think  of  this,  gen- 
tle reader.  This  one  local  tax  on  this  St.  Louis  lot  would 
have  paid  all  the  state  tax  on  that  lot  from  June  12, 
1877,  to  June  12,  A.  D.  4594.  It  would  pay  all  state 
taxes  back  to  100  years  before  Romulus  founded  Rome 
—750  years  before  the  crucifixion  of  Christ— 700  years 
before  the  Augustan  Age  of  Rome.  If  we  estimate  the 
property  worth  $250  before  the  improvement,  and  as- 
sess it  for  taxes  at  forty  per  cent  of  its  value,  then 
we  have  $100  valuation  for  taxes  and  the  state  tax  will 
be  fifteen  cents  on  the  $100  valuation.  This  local  tax 
of  $1,688  would  pay  all  state  taxes  on  this  lot  eleven 
thousand  two  hundred  and  fifty-three  years.  That 
would  pay  all  state  taxes  back  5,200  years  before  the 
time  of  Adam  and  Eve  in  the  Garden  of  Eden.  It 
would  pay  all  state  taxes  from  the  decision  on  June 
12,  1877,  up  to  June  12,  A.  D.  13130. 

And  if  there  is  any  one  thing  settled  in  American 
constitutional  law  it  is  this  viz. :  This  local  tax  in  one 
year  that  would  pay  all  state  taxes  for  eleven  thousand 
two  hundred  and  fifty-three  years  ''is  not  a  burden." 
That  one  year's  state  tax  is  a  burden. 

By  accident  we  have  this  comparison  in  this  re- 
ported case.  Many  cases  occur  where  the  tax-bill  is 
sufficient  in  amount  to  pay  the  state  taxes  back  to  the 
time  of  Adam  and  Eve  in  the  Garden  of  Eden,  and 


116  Law  of  IjOcal  Taxation.  [Chap.  5 

many  are  pre-Adamites.  The  Constitution  allowed  a 
debt  to  be  created  not  exceeding  five  per  cent  of  the 
taxable  property.  At  full  value  this  real  estate  was 
worth  $1,000.  Its  share  of  the  largest  possible  debt 
would  be  $50.  This  tax-bill  is  thirty-four  times  that 
amount.  If  the  assessed  value  were  forty  per  cent  of 
the  real  value,  the  tax  would  be  $20  as  its  share  of  the 
largest  possible  debt  to  be  contracted.  This  judgment 
is  eighty-four  times  that  amount.  The  highest  school 
debt  allowable  is  one  per  cent.  This  tax-bill  judgment 
will  pay  school  taxes  for  422  years.  The  highest  county 
tax  is  one-half  of  one  per  cent.  This  tax-bill  judgment 
will  pay  county  taxes  for  844  years.  The  highest  city 
tax  allowable  is  one  per  cent.  This  tax-bill  will  pay 
city  taxes  (for  general  purposes)  for  422  years. 

In  Zoeller  v.  Kellogg^  4  Mo.  App.  163,  the  land 
was  of  an  actual  value  of  $1,025.  The  judgment  was 
for  $1,688.  This  was  one  hundred  and  sixty-three  per 
cent  only.  The  total  assessed  value  of  all  the  prop- 
erty of  the  State  now  is  nine  hundred  millions  of  dol- 
lars. Now,  levy  a  road  tax  at  the  same  rate  on  all  the 
property,  real,  personal  and  mixed,  in  the  State  and 
you  will  absorb  all  the  property  in  the  State  and  be 
short  five  hundred  and  sixty-seven  millions  of  dollars ; 
i.  e.,  the  whole  property  of  the  State  is  absorbed  and 
there  is  lacking  five  hundred  and  sixty-seven  millions 
of  dollars  to  pay  the  contractor.  Now  the  people  of  the 
State  lose  all  they  have,,  but  you  must  remember  that 
this  is  no  burden;  it  was  not  to  the  St.  Louis  lot,  and 
the  same  rate  to  the  whole  State  would  be  no  burden. 
Some  might  object,  but  they  would  doubtless  be  very 
few  and  they  would  be  opposed  to  public  improvements 
any  way,  but  the  chief  concern  of  this  writer  is  what 
is  to  become  of  this  poor  contractor  w4io  is  five  hundred 
and  sixty-seven  millions  short  in  pay  on  his  job.  I  am 
really  apprehensive  it  will  break  him  u]).     Like  Alex- 


Chap.  5]  Thkories  of  Taxation.  117 

ander  the  Great,  he  nmst  weep  because  there  is  nothing 
more  to  tax. 

As  this  writer  now  views  the  subject,  nothing  pos- 
sible can  relieve  liim  from  this  disastrous  loss  except 
an  Act  of  Congress  to  apportion  this  five  hundred  and 
sixty-seven  millions  on  the  abutting  land  to  the  extent 
of  250  miles  in  depth  in  the  adjoining  states  for  the  ben- 
efited property  ought  to  pay  the  cost.  (Zoeller  v.  Kel- 
logg,  ought  not  to  have  been  overruled.) 

A  similar  tax  on  all  the  states  would  absorb  the 
whole  property  of  the  whole  country  and  fall  short 
about  thirty  thousand  millions.  This  is  four  times  as 
much  as  all  the  coined  money  of  the  world.  But  this 
tax  is  really  different  from  the  ordinary  tax  to  sup- 
port the  government,  for  this  particular  tax  is  no  bur- 
den. As  a  matter  of  idle  curiosity,  this  winter  would 
like  to  know  what  would  be  a  burden.  Our  tax-bills 
draw  ten  ])er  cent  interest.  This  ten  per  cent  on  this 
thirty  thousand  millions  is  only  three  thousand  mil- 
lions per  year.  This  looks  like  a  very  large  sum  of 
money  to  be  in  default  each  year,  but  still  those  bene- 
fited ought  to  ]iay  it.  But  you  must  have  indelibly 
fixed  in  your  mind  this  constitutional  truth:  this  tax  is 
no  burden  like  the  state  tax  of  fifteen  cents  on  the  hun- 
dred dollars  valuation.  A  somewhat  similar  difficulty 
presented  itself  ^larch,  1905,  to  the  thirteen  freeholders 
franiing  a  new  charter  for  Kansas  City. 

It  is  said  cases  are  frequently  met  with  where  the 
corner  lot,  being  only  twenty-five  feet  in  width,  is  not 
enough  in  value  to  ])ay  the  tax-bill  for  the  improve- 
ments on  the  adjoining  street.  The  proposal  was  to  ex- 
tend the  tax-bill  lien  to  the  center  of  the  block.  The 
abutting  ]U'0])erty  is  fi-equently  not  worth  enough  to 
pay  the  tax-bill.  This  has  seriously  affected  the  mar- 
ket for  tax-bills.  Before  tax-bills  can  be  sold  in  the 
market  now.  the    jiroposed    purchaser    examines    the 


118  Law  of  Local  Taxation.  [Chap.  5 

propertv  on  which  the  tax-bill  is  a  lien.  If  it  be  vacant 
property  the  tax-bills  may  be  rejected  in  the  market. 
The  property  may  not  be  worth  the  tax-bills.  The  im- 
proved corners  must  make  up  the  deficiency  for  the 
vacant  corners.  Take  the  four  corner  lots  on  any  street 
— lots  25  feet  by  150  feet.  Each  lot  will  have  a  tax  of 
$875  for  paving  (150  feet  plus  25  feet) ;  $175  for  side- 
walk (175  feet  at  $1);  curbing  $85;  sewer  $50;  trees 
$15;  total  $1200— $48  per  front  foot,  or  $8  per  front 
foot  the  short  way  (25  feet  deep).  This  is  thirty-two 
cents  per  square  foot  or  $7.68  for  our  graves,  four  feet 
by  six,  into  which  we  are  forced  by  this  tax  which  is 
not  a  burden.  Comer  lots  can  not  be  sold  at  that  price. 
This  allows  nothing  for  the  original  lot.  If  the  original 
lot  was  worth  $48  i^er  foot,  then  here  is  a  tax  of  one 
hundred  per  cent,  making  the  value  of  the  lot  $96  per 
front  foot.  But  this  tax  is  no  burden.  If  the  lot  was 
worth  before  the  improvement  $24  per  front  foot,  then 
here  is  a  tax  of  two  hundred  per  cent,  and  the  lot  is 
worth  $72  per  front  foot.  If  the  lot  is  worth  (unim- 
proved I  mean)  $12  per  front  foot,  then  the  tax  is  four 
hundred  per  cent  and  the  lot  must  sell  for  $60  per  front 
foot.  If  the  lot  is  worth  $2  per  front  foot,  then  the  tax 
is  twenty-four  hundred  per  cent  and  the  lot  is  worth  $50 
per  front  foot. 

This  tax  of  twenty-four  hundred  per  cent  is  no  bur- 
den. The  Constitution  prohibited  the  creation  of  a 
debt  exceeding  five  per  cent  for  ordinary  public  expen- 
ditures. More  than  five  per  cent  is  a  burden  for  gen- 
eral taxes  but  twenty-four  hundred  per  cent  for  a  street 
improvement  is  not  a  burden.  The  cost  of  the  improve- 
ment was  $1,200.  If  we  count  the  lot  then  worth  $600, 
then  the  contractor  loses  $600  by  taking  a  six  hundred 
dollar  lot  in  payment  of  a  $1,200  tax-bill.  The  lot  then 
was  originally  worth  in  cool  cash  $600  below  zero.  That 
is,  this  lotowner  must  find  some  one  and  then  make  a 


Chap.  5j  Theories  of  Taxation.  119 

deed  of  this  lot  to  him  and  give  him  six  Imndred  dol- 
lars in  cash,  and  then  that  grantee  of  the  lot,  holding 
the  cash  and  lot,  is  worth  exactly  zero.  "Gujus  est  so- 
lum ejus  est  usque  ad  caelum  et  ad  orcum."  It  cer- 
tainly nmst  be  admitted  that  some  of  our  real  estate  is 
high  in  the  air,  but  the  most  sincere  advocate  for  public 
improvements  will  readily  admit  that,  owing  to  exces- 
cive  taxes,  all  our  real  estate  has  gone  ''ad  orcum" 
(to  hell)  at  least  in  price.  ''Silks  and  satins  have  put 
out  the  kitchen  fire."  Here  is  reckless  extravagance 
and  consec[uent  ruin. 

The  freeholders  proposed  for  the  new  charter  of 
Kansas  City  that  the  corner  lot  should  be  relieved  of 
a  portion  of  this  burden.  They  proposed  to  make  the 
lien  (on  the  lot  25  feet  wide)  less  to  such  an  extent  that 
the  tax-bill  should  not  exceed  one  hundred  per  cent  of 
the  lot  including  the  improved  value.  It  was  proposed 
to  extend  the  lien  to  the  middle  of  the  block  because  the 
comer  lot  is  not  worth  enough  to  pay  the  tax-bill.  Those 
keeping  up  with  the  market  on  tax-bills  have  found 
many  tax-bills  that  exceed  in  amount  the  real  value  of 
the  land  on  which  they  are  liens.  These  tax-bills  must 
be  made  good  in  the  market.  Hence,  the  proposal  to 
lighten  the  burden  on  the  corner  and  increase  the  bur- 
den on  the  inside  lot.  The  result  is  liable  to  be  that  the 
tax-bill  on  the  inside  lot  will  be  greater  than  its  value, 
so  that  owmers  will  lose  both  inside  and  corner  lots. 
The  thoughtful  owners  of  inside  lots  hope  (not  in  vain) 
to  hold  their  inside  lots  and  let  the  corners  go  or  aban- 
don the  lots  to  the  holders  of  the  tax-bills.  If  the  char- 
ter can  authorize  a  lien  one  foot  beyond  abutting  prop- 
erty, it  can  for  a  mile  or  even  to  the  Kaw  river  on  the 
west  or  the  Mississippi  on  the  east  and  to  the  Rocky 
mountains  on  the  west.  Rather  than  allow  the  contrac- 
tor to  lose  money,  it  would  be  better  to  extend  it  from 
ocean  to  ocean  and  from  the  arctic  circle  to  the  equator. 


120      '  Law  of  Local  Taxation.  [Chap.  5 

The  Mississippi  river  and  the  Rocky  mountains  ought 
not  to  ])e  ''the  ultima  thule"  of  this  lien.  Such  narrow 
confines  for  this  lien  is  frequently  productive  of  great 
injustice.  Mrs.  Smith's  lot  (128  Mo.  23,  et  seq.)  was 
damaged  $2,750.  You  can  not  find  a  single  lot  in  Port- 
land, Oregon,  or  in  San  Francisco,  California,  or  any- 
where on  the  Pacific  Coast,  that  was  damaged  $2,750, 
but  they  issued  a  tax-bill  against  Mrs.  Smith's  lot  for 
doing  this  damage  and  she  had  to  pay  it  (67  Mo.  App. 
205,  et  seq.).  These  statements  may  seem  to  be  exag- 
gerations, but  a  brief  glance  at  the  facts  admitted  on  all 
sides  will  convince  any  one  that  the  statements  are  cor- 
rect. It  is  true  Mrs.  Smith  secured  judgment  for 
$2,750,  and  the  judgment  was  paid;  her  personal  at- 
tendance in  court  was  necessary.  Mrs.  Smith  had  to 
employ  and  pay  a  lawyer.  She  got  nothing  for  that. 
She  had  to  follow  the  case  to  the  Supreme  Court  of 
Missouri.  While  the  lotholder  in  Portland  or  San 
Francisco  was  not  benefited  in  fact,  he  certainly  was 
not  damaged  to  the  extent  of  $2,750.  He  had  none  of 
the  annoyances  of  a  troublesome,  vexatious  lawsuit  to 
recover  $2,750  damages  caused  by  a  $300  benefit. 

The  Tea  tax  of  the  Revolution  did  not  damage  a 
single  citizen  of  all  the  Colony  of  Massachusetts  Bay  to 
half  this  extent. 

The  Constitution  of  Missouri  of  1875,  article  10, 
made  important  changes.  It  made  no  change  except 
where  the  necessity  was  apparent  and  urgent.  The 
State  had  loaned  its  credit  to  various  railway  enter- 
prises. The  adventures  had  been  disastrous  financially, 
and  in  1865,  under  article  11,  section  13,  the  Legislature 
could  no  longer  lend  its  aid  to  any  corporation  or  per- 
sons. The  restriction  was  re-enacted  in  1875.  Coun- 
ties, cities,  towns,  villages,  townships  and  even  unor- 
ganized strips  of  land,  took  stock  in  railways  and  other- 
wise aided  railways  in  developing  the  country.     This 


Chap.  5 J  Thkukies  of  Taxation.  121 

proved  disastrous  and  the  power  was  modified  in  1865 
in  the  Constitution  so  as  to  re([uire  a  vote  of  tile  tax- 
payers or  voters  at  an  election  for  that  purpose.  These 
restrictions  proved  to  be  of  no  avail  and  in  the  Consti- 
tution of  1875  all  i)ower  was  taken  away  from  the  Leg- 
islature. 

The  Constitution  of  New  York  contained  this  })ro- 
vision  (People  v.  Mayor  of  Brooklyn,  4  New  York  419, 
55  Am.  Dee.  266,  at  284) :  "It  shall  be  the  duty  of  the 
Legislature  to  provide  for  the  organization  of  cities 
and  incorporated  villages,  and  to  restrict  their  pow- 
ers of  taxation,  assessment,  borrowing  money,  con- 
tracting debts  and  loaning  their  credit,  so  as  to  prevent 
abuses  in  assessments  and  in  contracting  debt  by  such 
municipal  corporations." 

' '  The  direction  given  to  restrict  the  power  of  cities 
and  villages  to  make  assessments,  presupposes  and  ad- 
mits the  existence  of  a  power  to  be  restricted."  [S.  C. 
in  55  Am.  Dec,  p.  284.] 

And  the  provisions  of  the  Constitution  of  New 
Y^ork,  first,  that  private  property  shall  not  be  taken  for 
public  use  without  just  compensation,  and  second,  that 
no  person  shall  be  deprived  of  life,  liberty  or  property 
without  due  process  of  law,  are  not  intended  to  nullify 
this  special  provision  on  this  special  subject  in  the 
same  Constitution.  Say  the  framers  of  the  Constitu- 
tion of  New  York:  "We  will  not  undertake— we  do 
not  undertake  to  restrict  you  in  taxation,  assessments, 
borrowing  money,  contracting  debts  and  loaning  your 
credit  or  that  of  cities,  towns  and  villages.  Y'our  Leg- 
islature must  make  these  restrictions." 

The  Constitution  does  not  act  on  the  subject.  It 
authorizes  the  Legislature  to  act.  It  is  said  that  there 
are  no  restraints  on  local  taxation  in  article  10  of  the 
Constitution.  This  is  true.  The  members  of  the  con- 
vention knew  of  local  taxation  and  made  no  effort  to  re- 


122  Law  of  Local  Taxation.  [Chap.  5 

strict  it  or  prohibit  it.  It  always  was  limited  to  the 
special  benefit.  The  old  constitution  contained  the 
provision  that  "Private  property  shall  not  be  taken  or 
applied  to  public  use  without  just  compensation." 

"Local  assessments  are  constitutional  only  when 
imposed  to  pay  for  local  improvements  conferring 
special  benefits"  (Oct.  A.  D.  1873,  51-  Mo.  at  474).  Wliy 
make  a  change  ? 

Locust  street  in  Kansas  City  was  graded  and  Mrs. 
Smith's  adjoining  lot  was  damaged  thereby  to  the  ex- 
tent of  $2,750:  There  was  a  local  assessment  of  $300 
to  pay  for  doing  this  damage  assessed  against  the  dam- 
aged property.  If  this  assessment  had  been  before  the 
Supreme  Court  of  Missouri  in  1872  or  1873  or  1874 
would  it  have  been  held  constitutional  by  the  court? 
Was  a  local  tax  then  constitutional  which  created  a 
damage  ten  times  as  great  in  amount  as  the  tax! 

"There  is  a  broad  distinction,  and  one  of  univer- 
sal recognition,  between  the  foundations  upon  which  is 
based  the  right  of  general  taxation  for  governmental 
purposes  and  that  which  supports  the  rights  of  local  as- 
sessments. The  authority  to  impose  either  is  referred 
to  the  taxing  power ;  but  the  object  of  one,  as  giving 
the  authority,  widely  differs  from  that  of  the  other. 

"All  taxation  is  supposed  to  be  for  the  benefit  of 
the  person  taxed.  That  for  raising  a  general  revenue 
is  imposed  primarily  for  his  protection  as  a  member  of 
society,  both  in  his  person  and  property  in  general,  and 
hence  the  amount  assessed  is  against  him,  to  be 
charged  upon  his  property,  and  may  be  collected  of  him 
personally.  But  on  the  other  hand,  local  taxes  for  local 
improvements  are  merely  assessments  upon  the  prop- 
erty benefited  by  such  improvements,  and  to  pay  for 
the  benefits  which  they  are  supposed  to  confer ;  the  lots 
are  increased  in  value,  or  better  adapted  to  the  uses  of 
town  lots,  by  the  improvement.    Upon  no  other  ground 


Chap.  5]  Theories  of  Taxation.  123 

uill  such  pattud  taxation  staiifl.  Other  property  held 
by  tlie  owner  is  affected  l)y  this  iinprovemeiit  i)recisely 
and  only  as  is  the  property  of  all  other  members  of  the 
community,  and  there  is  no  reason  why  it  should  te 
made  to  contribute,  that  does  not  equally  apply  to  that 
of  all  others. 

"The  sole  object,  then,  of  a  local  tax  being  to  Ijene- 
fit  local  property,  it  should  be  a  charge  upon  that  prop- 
erty only,  and  not  a  general  one  upon  the  owner.  The 
latter,  indeed,  is  not  what  is  understood  by  a  local  or 
special  assessment  but  the  very  term  would  confine  it 
to  the  property  in  the  locality;  if  the  owner  be  person- 
ally liable,  it  is  not  only  a  local  assessment,  but  also  a 
general  one  as  against  the  owner.  The  reasonableness 
of  this  restriction  will  appear  when  we  reflect  that 
there  is  no  call  for  a  general  execution  until  the  proi> 
erty  charged  is  exhausted.  If  that  is  all  sold  to  pay  the 
assessment,  leaving  a  balance  to  be  collected  otherwise, 
we  should  have  the  legal  anomaly— the  monstrous  in- 
justice— of  not  only  absorbing  the  property  supposed 
to  be  benefited  and  rendered  more  valuable  by  the  im- 
provement, but  also  of  entailing  on  the  owner  the  loss 
of  his  other  property"  (50  Mo.  528-9). 

This  was  the  language  of  the  Supreme  Court  of 
Missouri  in  1872,  just  three  years  before  the  conven- 
tion met  to  frame  the  Constitution  of  1875.  Wash 
Adams  was  then  a  member  of  the  Supreme  Court,  and 
he  was  a  member  of  the  Constitutional  Convention, 
having  resigned  his  place  on  the  Supreme  Bench  to  l^e- 
come  a  member  of  the  Constitutional  Convention. 

Under  the  Constitution  of  1820  and  of  1865,  local 
taxation  in  Missouri  could  only  exist  where  there  were 
local  benefits.  Not  only  must  there  be  benefits  but 
those  benefits  must  be  special,  peculiar,  not  enjoyed  in 
common  with  other  property  in  the  vicinity.  Taxation 
of  this  character  amounts  to  **  Taking  private  property 


124  Law  of  Local.  Taxation.  [Chap.  5 

for  public  use  without  'just  compensation,'  "  in  every 
case  where  this  special  benefit  did  not  exist.  Judge 
Richardson's  idea  that  a  general  benefit  was  sufficient 
was  overruled  'Uipon  no  other  ground  {than  benefits) 
will  such  partial  taxatiow  for  a  moment  stand."  At 
the  time  the  city  of  Weston,  under  authority  of  her 
charter,  levied  a  tax  of  one-half  of  one  per  cent  on  the 
lands  of  Mr.  Wells,  situated  without  the  city  limits  and 
within  one-half  mile  of  the  city  limits,  the  Legislature 
had  no  authority  to  tax.  The  Missouri  Constitution 
did  not  direct  the  Legislature  to  limit  their  power  to 
tax  lands  without  the  city  limits  and  within  one-half 
mile  of  the  city  limits.     The  power  was  prohibited. 

In  Missouri  this  power  was  prohibited  to  all  the 
departments  of  the  state  government.  In  place  of  be- 
ing prohibited  to  the  New  York  Legislature,  the  power 
was  given  in  express  words. 

In  the  matter  of  the  license  tax  on  wagons  hauling 
goods  or  iDroperty  from  points  without  to  points  within 
the  city,  the  Constitution  of  Missouri  did  not  direct  the 
Legislature  to  restrict  the  powers  of  the  city  of  St. 
Charles  in  levying  such  taxes.  In  place  of  delegating 
such  power  by  a  clause  therein  giving  the  Legislature 
full  power,  the  Constitution  left  it  where  it  was  here, 
and  where  it  would  have  been  in  New  York,  but  for  the 
peculiar  ])hraseology  of  the  New  York  Constitution.  It 
was  taking  private  property  for  public  use  without  just 
compensation,  and  that  clause  was  not  modified  in  Mis- 
souri as  in  New  York.  The  people  of  any  State  may 
adopt  a  constitution  without  a  clause  prohibiting  the 
State  or  any  one  acting  for  it  or  by  authority  granted 
by  it  from  taking  private  property  for  public  use  with- 
out just  compensation.  The  constitution  of  any  State 
may  provide  that  the  Legislature  of  the  State  in  the 
way  of  a  local  tax  may  take  private  property  for  pub- 
lic use  without  just  compensation,  but  shall  not  do  so 


Chap.  5]  Theories  of  Taxation.  125 

in  any  other  case.  They  may  in  tenns  give  their  legis- 
latures the  power  to  take  private  {iroperty  for  public 
use  in  all  cases  or  in  a  limited  number  or  character  of 
cases  without  just  compensation  or  any  compensation. 

The  construction  ])ut  on  the  state  constitution  by 
the  highest  judicial  tribunal  of  the  State  becomes  a 
part  of  that  constitution  the  same  as  if  copied  into  it. 
The  Supreme  Court  of  Missouri  for  a  number  of  years 
put  a  construction  on  the  clause  of  the  state  constitu- 
tion providing  that  "Private  property  shall  not  be 
taken  for  public  use  without  just  compensation."  That 
construction  was  that  a  local  tax  i)ut  on  abutting  prop- 
erty to  |)ay  for  improvements  in  front  of  or  adjoining 
it  where  tlie  property  does  not  receive  a  special,  pecul- 
iar, exceptive  benefit,  a  benefit  not  enjoyed  by  other 
])roperty  in  the  neighborhood,  is  a  taking  of  private 
])roperty  for  public  use  without  just  compensation,  con- 
trary to  the  Constitution  of  the  State. 

The  new  Constitution  provided  that  not  only 
should  private  property  not  be  taken  for  public  use 
without  just  compensation,  but  that  it  should  not  be 
damaged,  thus  adding  an  additional  security  for  pri- 
vate property. 

A  moment's  reflection  will  convince  even  the  most 
skeptical  that  if  local  taxes  can  l3e  levied  without  spec- 
ial benefits  equal  to  or  greater  than  the  tax,  then  the 
express  rule  of  constitutional  law  that  private  property 
shall  not  be  taken  for  public  use  without  just  compensa- 
tion is  abolished;  for  in  every  case  this  "just  compen- 
sation" after  having  been  ascertained  in  a  proper  ju- 
dicial proceeding  may  be  taxed  one  hundred  per  cent 
to  pay  the  owner,  and  there  is  no  difference  in  retain- 
ing the  whole  of  this  "just  compensation"  on  the  one 
hand,  and  selling  adjoining  land  to  pay  it  on  the  other 
hand.  If  the  land  be  not  benefited,  the  owtier  loses  his 
land  and  gets  nothing  for  it,  or  loses  his  monev  and 


126  Law  of  Local  Taxation.  [Cliap.  5 

gets  nothing  for  it.  The  purchaser  gets  the  land;  the 
foraier  owner  can  not  get  it  from  him ;  the  jmblic  gets 
the  money  and  the  landowner  can  not  get  it  from  the 
public.  This  local  tax,  in  order  to  be  enforced,  must  be 
a  beneiit  to  the  property  taxed;  or,  more  properly 
speaking,  the  work  for  which  the  special  tax  is  levied 
must  be  a  benefit  to  the  property  taxed  and  that  bene- 
fit must  be  special,  peculiar,  exceptive— a  general  bene- 
fit is  not  sufficient;  any  other  other  local  tax  was  un- 
constitutional in  taking  private  property  for  public  use 
without  "just  compensation." 

These  judicial  decisions  became  a  part  of  the  Con- 
stitution, and  the  Constitutional  Convention  of  1875  in 
proposing  this  constitution,  and  the  people  of  the  State 
of  Missouri  in  adopting  it  with  the  same  language  as 
contained  in  the  previous  constitutions,  adopted  it  with 
the  same  construction  put  on  it  by  the  courts. 

This  is  the  rule  applicable  to  statutes  adopted 
from  other  states  or  countries  by  this  State,  or  contin- 
ued or  re-enacted  in  this  State.  The  rule  should  hold 
good  for  the  different  sections  and  clauses  in  the  state 
Constitution. 

Again,  what  is  expressed  in  a  state  constitution  (e. 
g.,  "private  property  shall  not  be  taken  or  damaged  for 
public  use  without  just  compensation)  ought  to  control 
that  which  is  implied  (the  unlimited  power  to  tax  for 
doing  an  act  which  the  Constitution  prohibits). 

"The  rule  of  constitutional  law  being  that  private 
property  can  not  be  taken  for  ]mblic  use  by  the  author- 
ity of  the  Legislature  without  a  just  compensation,  it 
follows  that  what  is  to  be  considered  as  com'pensation 
within  the  meaning  of  this  clause  is  a  question  of  law 
for  the  courts  and  not  a  matter  for  the  Legislature ; 
and  under  such  a  constitution  as  we  have  supposed, 
with,  no  other  power  over  private  property  than  that  of 
taking  it  for  the  public  use  upon  making  the  owner  a 


Chap.  5]  Theories  of  Taxation.  127 

just  compensation,  it  would  be  quite  beyond  the  scoyxi 
of  the  legislative  authoi-ity  to  declare  that  the  benefit 
derived  by  the  landowner  from  the  road  is  the  just 
compensation  secured  by  the  Constitution."  [Neivby 
V.  Platte  Coifiiti/,  25  Mo.  258,  at  263,  near  the  bottom 
(A.  D.  1857).] 

The  case  of  the  North  Missouri  Railroad  Company 
V.  Lackland,  25  Mo.  515,  et  seq.,  holds  likewise  that  the 
proceeding  in  condemnation  cases  is  a  judicial  proceed- 
ing. The  section  of  the  Constitution  demands  a  judic- 
ial proceeding,  for  this  just  comi)ensation  must  be  as- 
certained by  a  jury  or  board  of  commissioners.  A  jury 
is  peculiar  to  a  court  of  law  in  judicial  proceedings.  A 
]uTY  is  wholly  unknown  in  legislative  proceedings.  In 
this  case  the  railroad  company  filed  its  suit  to  condemn 
a  house  and  lot  in  St.  Charles,  Missouri,  for  a  part  of 
its  right  of  way.  The  commissioners  were  appointed 
and  on  viewing  the  premises  they  assessed  the  just 
compensation  at  $-l-,200.  They  filed  their  report  on 
September  24,  1855.  The  railroad  filed  no  exceptions. 
At  the  next  term  the  railroad  comjiany  asked  that  the 
case  be  dismissed,  which  was  done.  Defendant  at  the 
same  term  moved  the  court  to  set  aside  the  dismissal 
and  the  motion  was  sustained.  Plaintiff  moved  for 
judgment  on  the  report  and  the  motion  was  sustained 
and  judgment  entered  accordingly  and  the  railroad 
company  appealed.  Would  an  appeal  lie  f  The  question 
was  whether  this  was  a  judicial  proceeding.  Did  the 
court  act  as  a  court!  The  Supreme  Court,  at  page  526, 
say: 

*'That  there  may  be  cases  where  special  and  limit- 
ed authority  is  delegated  to  a  court,  not  because  it  is  a 
couH.  but  from  some  idea  of  convenience  or  propriety 
and  the  decision  of  the  court  be  made  final,  is  not  ques- 
tioned. Tt  may,  however,  admit  of  a  doubt  whether  the 
Legislature  could  so  devise  a  proceeding  designed  to 


128  Law  or  Local  Taxation.  [Chap.  5 

effect  the  transfer  of  private  property  to  the  public,  so 
as  to  deprive  the  courts  of  the  power  of  determining 
whether  the  constitutional  restrictions  upon  this  subject 
had  been  honestly  complied  with.  However  this  may 
be,  the  question  here  is,  does  the  court  act  in  its  judic- 
ial cajDacity,  and  can  it  exercise,  in  its  control  over  the 
subject  confided  to  it  by  the  charter,  the  general  powers 
and  jurisdiction  of  a  court,  or  is  the  court,  quo  ad  hoc, 
a  mere  commissioner,  a  sjDecial  tribunal  selected  for  a 
special  purpose  and  functus  officio  when  the  special 
powers  confided  to  it  by  statute  have  been  exhausted. ' ' 
After  some  observations  as  to  the  statutes  the  court 
say,  p.  527 : 

"There  are  some  provisions  in  this  section  which 
undoubtedly  might  be  construed  to  limit  the  power  of 
the  judge,  as  a  mere  commissioner,  to  the  specific  acts 
delegated ;  but  in  the  main  the  general  scope  of  the  sec- 
tion looks  to  the  action  of  the  court  in  its  judicial  ca- 
pacity, and  gives  the  court  authority,  not  only  to  pro- 
nounce a  judgment  which  will  pass  a  title  to  the  land  to 
the  company  and  a  right  to  the  damages  to  the  land- 
owner, but  '  To  make  all  orders  and  take  any  steps ' 
which  in  the  opinion  of  the  court  will  best  promote  the 
ends  of  justice.  Although  the  act  is  carelessly  drawn, 
and  framed  in  a  mode  to  justify  doubts  as  to  its  tnie 
intent,  we  will  not  presume,  notwithstanding  the  ab- 
sence of  any  special  provisions  for  an  appeal,  that  it 
was  the  intention  of  the  Legislature  to  deprive  the  par- 
ties interested  of  this  right ;  especially  as  the  provisions 
of  the  general  law,  both  of  1849  and  1815,  seem  large 
enough,  without  any  strained  construction,  to  embrace 
the  case.  We  are  the  more  inclined  to  this  opinion,  be- 
cause an  appeal  is  the  most  convenient  and  least  ex- 
pensive mode  in  which  the  supei'vising  jurisdiction  of 
this  court  can  Ix;  exercised,  and  because  it  may  be 
safely  said  that  it  is  at  least  doubtful  whether  that  jur- 


Chap.  5]  Theories  of  Taxation.  129 

isdiction  could  bo  entirely  cut  off  if  the  Legislature  had 
so  intended.  Could  the  Legrislature  ])rovide  an  illusory 
compensation  for  i)rivate  i)roperty  taken  for  public  use, 
totally  at  variance  with  the  true  spirit  of  the  Constitu- 
tion, and  by  placing  its  enforcement  under  the  control 
of  a  selected  tribunal  and  declaring  the  decisions  of 
that  tribunal  final,  thus  place  the  subject  beyond  the 
reach  of  the  courts  f ' ' 

The  legislative  department  of  every  city,  town  and 
village  is  just  such  a  tribunal  now.  It  would  seem  that 
the  question  what  is  "just  compensation"  for  prop- 
erty taken  for  public  use  is  a  judicial  question  and  if  a 
l)roperty-owiier  may  be  i)aid  in  benefits  as  well  as  in 
cash — if  "just  compensation"  may  be  made  in  bene- 
fits as  well  as  cash— then  what  is  a  benefit  and  how 
much,  are  judicial  questions  for  the  courts. 

"But  it  was  not  admitted  that  the  road  was  any 
benefit  to  the  party,  and  the  court,  we  think,  could  not 
infer  this  as  a  matter  of  law  from  the  agreed  facts  and 
pronounce  against  allowing  the  plaintiff  any  compensa- 
tion for  the  property  of  which  he  was  deprived. ' ' 
[Neicbij  v.  Platte  County,  25  Mo.  258,  at  275.] 

Continuing  in  the  same  case  the  court  say : 

"As  to  the  proper  rule  by  which  to  compute  the 
benefits  in  cases  of  this  character,  it  may  not  be  ini- 
jn-oper,  as  the  case  is  to  be  remanded  for  further  pro- 
ceedings, to  remark,"  etc.,  etc.,  about  the  rule  in  ^las- 
sachusetts  that  special,  ]^eculiar,  exceptive  benefits 
alone  can  be  considered.  Here  the  court  computes 
benefits  and  ascertains  and  determines  the  fact  and 
amount  of  benefits. 

The  court  can  not  do  this  if  tlie  question  be  prop- 
erly a  legislative  question.  The  courts  have  no  legisla- 
tive powers.  The  Legislature  has  no  judicial  powers. 
This  is  American  constitutional  law. 

9 


130  Law  of  Local  Taxation.  [Chap.  5 

'^The  council  does  not  nor  can  it  assess  damages  or 
benefits."  [Baird  v.  Kansas  City,  98  Mo.  215,  1.  c.  221 
(A.  D.  1889).] 


CHAPTP]R  6. 

POWER  OF  TAXA'nON   A   PART  OF  RO\'T.REIGNTY, 

We  have  seen  in  the  preceding  chapters  that 
benefit  is  the  foundation  of  the  ]iower  of  local  taxation. 
Without  such  benefit  local  taxation  is  confiscation.  We 
have  seen  that  the  benefit  nmst  l)e  s])ecial,  peculiar,  ex- 
ceptive, not  enjoyed  in  connnon  with  the  owners  of 
property  in  the  neighborhood  or  viciniiy.  We  have 
seen  that  a  tax  law  which  allows  general  advantages  to 
be  set  off  against  "the  just  compensation"  for  land 
taken  for  i)ublic  use,  is  an  infringement  of  the  rule  of 
constitutional  law  which  provides  that  **  Private  prop- 
ert^^  shall  not  be  taken  for  public  use  without  just  com- 
pensation." We  have  seen  that  any  tax  law  whicb.  in 
place  of  deducting  a  sum;  of  money  from  this  just  com- 
pensation, places  it  as  a  charge  or  lien  on  adjoining* 
land  when  that  land  does  not  receive  this  special,  i)ecul- 
iar,  exceptive  benefit,  is  likewise  an  infringement  of  the 
same  rule  of  constitutional  law.  We  have  seen  that  in 
the  early  establishment  of  this  rule  of  constitutional 
law,  its  op])onents  admitted  that  a  l)enefit  was  neces- 
san-  and  without  a  l)enefit  there  could  l>e  no  tax.  The 
only  point  of  difference  was  that  a  general  benefit  was 
thought  to  be  sufficient,  and  this  was  overruled. 

We  have  seen  (25  Mo.  258,  at  263)  that  'Mf  the 
state  government  ])ossessed  no  authority  over  pnvate 
property  except  that  of  taking  it  for  public  use,  upon 
rendei'ing  the  owner  a  just  compensation,  it  would  seem 
that,  under  this  ]irovision,  the  owner  would  Ix^  entitled 
to  the  full  money  value  of  liis  ))roperty  without  any  de- 
duction." We  have  seen  that  deducting  any  ]X)rtion  of 
this  just  compensation,  or  placing  it  as  a  charge  or  lien 

(131) 


132  Law  of  Loc.aj.  Taxation.  [Chap.  6 

on  adjoining  land,  is  an  exercise  of  the  taxing  power  in 
each  case  (25  ]\[o.  505,  at  514).  We  have  seen  under 
the  principles  anounced  in  Zoeller  v.  Kellogg,  4  Mo. 
App.  163,  before  it  was  overruled,  that  under  local 
taxation  private  property  can  no  more  be  taken  for 
public  use  without  just  coin]iensation  than  in  the  exer- 
cise of  any  other  governmental  power.  The  restrictions 
for  the  security  of  private  property  applied  to  all 
branches  of  the  government,  legislative,  executive  and 
judicial.  We  come  now  to  the  other  theory  of  taxa- 
tion, and  it  has  very  weighty  reasons  in  its  support. 

The  power  of  taxation  exists  in  the  State  without 
being  conferred  by  the  people  of  the  State  or  by  the 
Constitution.  The  power  is  a  part  of  sovereignty ;  it  is 
inseparable  from  it.  Let  us  return  to  a  period  prior  to 
1875,  in  the  constitutional  history  of  Missouri.  We  had 
then  a  constitutional  provision  that  all  property  sub- 
ject to  taxation  shall  be  taxed  in  proportion  to  its 
value.  There  was  no  other  restraint  in  terms  in  the 
Constitution.  Hence,  it  is  said  the  Legislature  may  tax 
one  hundred  per  cent.  The  constitutional  requirement 
that  all  property  subject  to  taxation  shall  be  taxed  in 
l^roportion  to  its  value  is  complied  with  if  a  tax  of  one 
hundred  per  cent  is  levied,  and  the  tax  is  valid  if  it  is 
not  in  contravention  of  some  other  provision  of  the 
Constitution.  The  city  of  Weston  levied  a  tax  of  one- 
half  of  one  per  cent  on  all  laud  without  the  city  limits 
and  within  a  half  mile  thereof.  This  was  a  general  tax. 
This  was  in  form  authorized  by  the  charter  of  Weston. 
It  was  not  invalid;  it  was  not  claimed  to  be  invalid  by 
reason  of  coming  in  conflict  with  the  only  express  limi- 
tation in  the  Constitution  on  the  subject  of  taxation; 
the  property  if  validly  taxed  at  all  was  taxed  accord- 
ing to  value  in  precise  compliance  with  this  express 
limitation  on  the  taxing  ]:)Ower,  and  yet  the  tax  was  in- 
valid by  reason  of  the  fact  that  the  statute  authorizing 


Chap.  G]  Power  of  Taxation.  133 

it  was  in  conflict  with  an  implied  provision  of  the  Con- 
stitution that  ])rivate  pr()})erty  cannot  be  taken  for  i)ri- 
vate  use.  The  statute  took  Wells'  private  property  and 
gave  it  to  the  peoi)le  living  in  Weston  for  their  private 
use.  The  fact  that  Wells'  land  was  enhanced  in  value 
by  reason  of  its  ])roxin)ity  to  Weston,  by  reason  of  the 
fact  that  a  market  was  brought  to  his  door,  was  not 
considered  by  the  court.  The  benefit  was  of  no  more 
force  than  if  a  mill  had  been  erected  by  Mr.  Wells' 
neighbors  (many  or  few).  Mr.  Wells'  land  could  not 
for  that  reason  be  taken  from  him  in  w^hole  or  in  part, 
as  suggested  by  Judge  Tucker  in  James  River  and 
Kanaicha  Company  v.  Turner,  9  Leigh  313. 

Mr.  Wells'  land  cannot  be  taken;  he  cannot  be  tax- 
ed "For  having  a  market  and  other  conveniences 
brought  to  his  door"  (25  Mo.  539,  Richardson,  Judge, 
dissenting  opinion). 

It  seems  Mr.  Wells  was  "entitled  to  gratuitously 
receive  such  advantages."  It  was  "well  settled  that 
the  exercise  of  the  power  to  assess  and  collect  the  pub- 
lic burdens  should  not  be  purely  arbitrary  and  unregu- 
lated." The  Constitution  of  Missouri  as  then  inter- 
preted, regulated  the  Weston  tax  by  holding  it  void 
and  prohibited.  If  the  Constitution  did  not  "regu- 
late" this  tax,  what  did? 

The  power  to  tax  is  the  powder  to  destroy.  If  the 
Legislature  thus  has  the  power  to  destroy  by  taxation 
and  are  proceeding  to  destroy  by  taxation,  how  are  the 
courts  to  regulate  that  legislative  action?  If  the  Legis- 
lature enact  a  law^  prohibited  by  the  Constitution  then 
that  law  is  invalid. 

"The  power  of  taxation  is  inferred  from  the  gen- 
eral grant  of  legislative  authority.  But,  like  all  gen- 
eral grants,  it  must  yield  whenever  found  in  couiiict 
with  any  special  restriction.  The  restriction  requiring 
just  compensation  when  one's   property   is   taken   for 


134  Law  of  Local  Taxation.  [Chap.  6 

public  purposes,  is  usually  applicable  in  i)i'actice  to  the 
power  of  eminent  domain.  If,  however,  in  a  peculiar 
state  of  facts,  it  shall  be  found  directly  hostile  to  a  cer- 
tain exercise  of  the  taxing  power,  or  of  any  otJier 
power,  the  restriction  will  be  supreme,  and  the  power 
must  be  so  far  surrendered."  [Zoeller  v.  Kellogg,  4 
Mo.  App.  163,  at  167.] 

The  tax-bills  sued  on  accrued  in  August,  1873,  two 
years  before  the  Constitution  of  1875  was  adopted. 
While  the  decision  was  not  rendered  till  1877,  it  ought 
to  be  classed  with  those  rendered  by  the  Supreme  Court 
prior  to  1875,  and  the  substance  of  this  decision  must 
have  been  in  the  mind  of  the  members  of  the  Constitu- 
tional Convention  when  they  proposed  this  Constitu- 
tion of  1875,  and  in  the  minds  of  the  people  of  this  State 
when  they  adopted  it.  The  opposite  of  this  theory  un- 
der consideration  virtually  affirms  that  in  the  matter  of 
local  taxation  the  legislative  power  is  not  governed  by 
the  Constitution.  The  Constitution  of  New  York  dif- 
fers from  that  of  Missouri.  The  Constitution  of  New 
York,  by  a  special  clause  therein,  delegates  this  whole 
matter  to  the  Legislature.  Of  course  this  part  of  the 
Constitution  of  New  York  is  constitutional  according 
to  the  Constitution  of  New  York. 

The  rule  of  constitutional  law  is  very  general. 
"Private  property  shall  not  be  taken  for  public  use 
without  just  compensation."  Neither  the  legislative, 
judicial  or  executive  departments  of  government  nor 
all  combined,  either  directly  or  indirectly,  can  take  pri- 
vate property  for  public  use  without  just  compensation 
in  any  case.  There  are  no  exceptions  to  this  constitu- 
tional restriction. 

''Local  assessments  are  constitutional  only  when 
imposed  to  pay  for  local  improvements  conferring 
special  benefits."  [State  ex  rel.  v.  Leffingwell,  54  Mo. 
458,  at  474.]     The  local  assessment  may  be   according 


Cliap.  OJ  Power  of  Taxati6n.  135 

to  value  or  by  the  front  foot  or  by  the  square  foot  or 
according  to  advantage  or  benefit;  in  all  cases  the  local 
assessment  is  unconstitutional  unless  special  benefits 
exist  as  defined  in  the  decisions  of  the  courts.  Local  tax- 
ation by  the  acre  or  according  to  frontage  or  l)y  the 
square  foot  or  according  to  benefit,  is  no  violation  of 
the  rule  of  constitutional  hnv  that  "All  property  sub- 
ject to  taxation  shall  \ye  taxed  in  projwrtion  to  its 
value." 

Local  taxation  by  the  acre  or  according  to  frontage 
or  by  the  square  foot  or  according  to  value  or  accord- 
ing to  benefit,  if  there  be  in  any  of  the  methods  of  local 
taxation  a  lack  of  this  ))eculiar,  exceptive  benefit,  is  a 
violation  of  that  rule  of  constitutional  law  that  "Pri- 
vate property  shall  not  be  taken  for  public  use  without 
just  compensation."  It  is  the  fact  of  taking  private 
property  for  public  use  without  just  compensation 
which  is  i)roliil)ited  and  not  the  method.  The  method 
is  wholly  immaterial.  Local  taxation  is  unconstitu- 
tional unless  there  is  this  peculiar  exceptive  benefit. 

"The  constitutional  validity  of  a  law  is  to  be  tested 
not  by  what  has  been  done  under  it,  but  by  what  by  its 
authority  may  be  done."  [Stewart  v.  Palmer,  74  N.  Y. 
183,  at  188.]  That  this  is  the  rule  (or  rather  was  the 
rule)  in  Missouri  appears  from  the  opinion  of  the 
court  in  City  of  St.  Louis  to  use  v.  Allen,  in  53  Mo.  44, 
at  55,  where  the  court  in  rendering  the  opinion  say : 

"The  idea  that  a  city  could  improve  a  street,  and 
assess  the  property  benefited  thereby,  and  sell  the  en- 
tire property,  and  then  go  on  the  owner  of  the  property 
who  may  reside  out  of  the  city,  and  sell  his  property 
there  to  ])ay  the  ]>alance  of  the  assessment,  and  this  all 
in  consideration  of  the  benefit  conferred  on  his  proper- 
ty, which  was  already  sold,  would  seem  at  least  in  its  re- 
sults like  taking  the  i)i-oi)erty  of  the  owner  and  con- 
verting it  to  public  use  without  any  just  compensation. 


136  Law  of  Local  Taxation.  [Chap.  6 

I  do  not  believe  that  by  this  indirection  you  can  do  that 
which  is  forbidden  by  the  Constitution  if  directly  done. 
If  a  personal  judgment  can  be  rendered  in  such  case 
all  this  may  happen.  It  is  true  it  is  not  likely  to  happen, 
but  the  fact  that  it  may  possibly  happen  is  enough  to 
defeat  the  law." 

"If  we  construe  the  statute  in  reference  to  these 
assessments  to  authorize  a  personal  judgment,  by 
which  such  results  might  follow,  it  would  make  the 
statute  unconstitutional  and  void,"  because  it  might 
possibly  happen  that  outside  property  would  be  sold ;  it 
need  not  actually  be  sold.  In  the  opinion  of  the  court 
it  was  then  too  late  to  apply  this  rule  to  local  taxation 
by  the  front  foot.  It  might  possibly  happen  that  abut- 
ting property  was  not  benefited  and  hence  the  rule  of 
constitutional  law  would  render  the  statute  void. 

"If  the  power  of  municipal  corporations  to  make 
these  local  improvements  and  make  special  assessments 
ag-ainst  the  adjoining  property  for  the  cost  thereof,  in 
proportion  to  the  front  foot  or  otherwise  was  a  new 
question  in  this  State,  it  might  be  difficult  to  find  any 
sufficient  warrant  in  the  Constitution  to  justify  such 
assessments  or  taxation,  but  this  method  of  taxation 
has  been  recognized  and  acted  on  too  long  to  now  be 
questioned,  but  it  is  certainly  the  duty  of  the  courts  to 
see  that  its  exercise  is  kept  within  proper  limit,"  i.  e., 
the  limit  of  special,  peculiar,  exceptive  benefit. 

What  is  this  "proper  limit"  within  which  the 
courts  are  to  confine  this  power  of  local  taxation?  If  it 
is  not  the  limit  fixed  b)^  the  Constitution,  what  is  it! 
There  is  a  power  somewhere  that  limits  this  power  to 
tax.  The  statute  fixes  no  limit;  the  Constitution  does 
and  the  statute  is  void  if  it  exceeds  this  limit  of  benefit. 

If  the  abutting  property  be  benefited  to  an  amount 
equal  to  ten  times  or  one  hundred  times  the  cost,  still 
this  local  tax  law   is    void— unconstitutional — on    the 


Chap.  6]  Power  of  Taxation.  137 

ground  of  taking  private  property  for  public  use  witli- 
out  just  compensation  if  it  autliorizes  a  i)ersonal  jud?:- 
ment  against  the  owner  because  it  may  possibly  hap- 
])en  that  other  distant  property  not  benefited  may  be 
sold. 

While  Garrett  v.  St.  Louis  and  Neirby  v.  Plattf^. 
County  established  the  rule  of  constitutional  law  that 
to  ^-ithhold  any  portion  of  the  just  compensation  on  ac- 
count of  benefits  to  adjoining  property,  when  the  bene- 
fits are  not  special,  peculiar,  and  exceptive,  is  a  taking 
of  private  ]iro])erty  for  public  use  without  just  compen- 
sation, the  statutes  were  not  construed  according  to  the 
rule  laid  down  in  the  case  of  Stenart  v.  Palmer,  74  X. 
Y.  183,  at  188. 

The  statutes  construed  merely  used  the  term  "ad- 
vantage" or  *' benefit."  The  court  added  the  proviso 
that  the  benefits  must  be  special,  peculiar,  exceptive  in 
order  to  avoid  conflicts  with  the  constitutional  rule  pro- 
viding that  "private  property  shall  not  be  taken  for 
})ublic  use  without  just  compensation."  **It  is  evident 
that  the  advantages  or  benefits  spoken  of  must  have 
some  limits"  (25  Mo.  512).  And  the  court  in  requiring 
this  exceptive  benefit,  proceeds  to  put  a  limit  in  the  law 
not  enacted  by  the  Legislature,  to  render  the  law  con- 
stitutional. 

The  test  of  the  constitutional  validity  of  a  law  is 
discussed  in  City  of  St.  Louis  to  use  of  Seihert  v.  Al- 
len, in  53  Mo.  44  (1873).  It  is  not  necessary  that  the 
ill  consequences  appear  in  the  particular  case.  The  l>ad 
result  may  not  be  present.  **It  is  true  it  is  not  likely 
to  happen,  but  the  fact  that  it  may  possiJ)ly  happen  is 
enough  to  condemn  the  laic."    [Id.,  page  55.] 

"The  constitutional  validity  of  a  law  is  to  be  test- 
ed not  by  what  has  been  done  under  it,  but  by  what  by 
its  authority  may  l)e  done/'  say  the  Supreme  Couii  of 
New  York  in  Stewart  v.  Palmer,  74  N.  Y.  ISS.  at  188, 
quoted  supra. 


138  Law  of  Local  Taxation.  [Chap.  6 

' '  This  test  is  accurate, ' '  say  the  Supreme  Court  of 
the  United  States  in  1893,  in  Montana  Company  v.  St. 
Louis  Comixiny,  152  U.  S.  160-1,  at  170,  "provided  of 
course  it  is  limited  to  what  may  rightfully  be  done  and 
does  not  extend  to  that  which  is  wrongfully,  though 
under  pretense  of  the  statute,  done."  The  Montana 
statute  there  in  controversy  (152  U.  S.,  supra)  author- 
ized a  hearing  in  court  on  notice  given.  The  right  was 
tried  in  court.  ^A^at  may  be  rightfully  done  under  the 
Montana  statute  was  tried  in  court  under  that  statute 
and  the  case  was  appealed  to  the  Supreme  Court  of 
the  State  where  the  judgment  was  affirmed.  What  was 
done  was  done  under  actual  authority,  not  under  pre- 
tense or  color  of  authority. 

Does  the  rule  prescribed  by  statute  come  in  con- 
flict with  that  prescribed  by  the  Constitution  ?  Has  the 
Legislature  x^rescribed  a  rule  forbidden  by  the  Consti- 
tution f 

Let  the  statute  in  terms  provide  beyond  a  doubt 
that  in  levying  this  tax  a  general  benefit  is  sufficient : 
may  the  taxing  power  rightfully  under  such  statute 
levy  the  tax  where  such  general  benefit  only  exists! 

In  rendering  the  opinion  of  the  Supreme  Court  of 
Missouri  in  City  of  Pleasant  Hill  v.  Dasher,  120  Mo. 
675,  at  680  (A.  D.  1893),  the  court,  referring  to  City  of 
St.  Louis  to  use  of  Seibert  v.  Allen,  53  Mo.  44,  says : 

"It  was  held  in  clear  and  distinct  terms  that  the 
Legislature  had  no  power  to  authorize  a  personal  judg- 
ment against  the  property-owner  in  suits  to  recover 
these  local  assessments." 

Now  apply  the  same  construction  to  local  taxation 
according  to  the  frontage.  This  special,  j)eculiar,  excep- 
tive benefit  is  incorporated  into  the  statute  by  the  court 
in  order  to  render  the  statute  constitutional.  Local 
taxation  according  to  general  benefit  is  unconstitu- 
tional.   That  was  not  denied  in  any   case   until   after 


Chap.  6]  Power  of  Taxation.  139 

1880.  The  same  exceptive  iKMiefit  was  added  l)y  the 
court  to  all  local  taxation,  it  made  no  sort  of  ditfer- 
ence  whether  this  local  tax  was  according  to  benefit  or 
according  to  value  or  by  the  acre  or  according  to  front- 
age or  other-vvdse,  the  court  in  all  cases  added  the  ex- 
ceptive benefit  in  order  to  its  constitutional  validity. 
This  exceptive  benefit  has  been  judicially  incorporated 
into  this  and  like  statutes  for  so  long  a  time  that  the 
court  now  (A.  D.  1873  and  since)  decline  to  consider 
these  laws  unconstitutional  on  the  ground  of  "what 
may  possibly  happen"  under  a  literal  interpretation  of 
them.  The  Legislature  passed  laws  that  were  uncon- 
stitutional until  such  laws  were  amended  by  tlie  courts 
so  as  to  make  them  conform  to  the  Constitution  by  re- 
quiring this  exceptive  benefit  in  addition  to  the  legisla- 
tive requirements.  The  writer  would  mildly  suggest 
that  it  is  best  to  allow  the  Legislature  to  make  the  laws, 
and  if  the  law  so  made  fails  to  conform  to  the  consti- 
tutional requirements,  decide  it  void  and  allow  the  Leg- 
islature to  make  a  new  law. 

In  Neivhy  v.  Platte  Coiinty  the  road  law  of  1845, 
as  amended  by  the  court,  was  held  to  be  constitutional. 
Perhaps  if  this  judicial  amendment,  incorporated  into 
the  law  by  the  courts,  had  been  offered  in  the  Legisla- 
ture it  would  have  defeated  the  enactment  of  the  law. 
The  special  benefit  was  necessary  to  the  constitutional 
validity  of  the  law  and  this  judicial  construction  of  the 
Constitution  became  a  ])art  of  the  Constitution  the 
same  as  if  incorporated  into  it. 

The  question  is  one  of  legislative  intent  alone,  in 
the  construction  of  statute  law  (for  a  state  constitution 
is  a  statute  within  the  rule).  If  the  Legislature  of  Mis- 
souri had  in  her  road  law  of  18-4-5  provided  that  the 
road  commissioners  or  jury  should  take  into  considera- 
tion the  advantages  as  well  as  disadvantages,  and  that 
the  advantages  to  be  considered  must  be  s])ecial,  ]KMnil- 


140  Law  of  Local  Taxation.  [Chap.  G 

iar,  exceptive,  then  their  act  would  have  been  constitu- 
tional. But  suppose  in  a  separate  section,  tliere  was  a 
provision  that  general  benetits  should  be  taken  into 
consideration,  then  this  section  alone  should  have  been 
unconstitutional. 

A  question  similar  to  this  came  up  in  Connolly  v. 
Union  Sewer  Pipe  Co.  (A.  D.  1902),  184  U.  S.  540.  In 
the  majority  opinion  the  court  says : 

''The  principles  applicable  to  such  a  question  are 
well  settled  by  the  adjudications  of  this  court.  If  dif- 
ferent sections  of  a  statute  are  independent  of  each 
other,  that  which  is  unconstitutional  may  be  disregard- 
ed, and  valid  sections  may  stand  and  be  enforced.  But 
if  an  obnoxious  section  is  of  such  import  that  the  other 
sections  without  it  would  cause  results  not  contem- 
plated or  desired  by  the  Legislature,  then  the  entire 
statute  must  be  held  inoperative.  The  first  section  of 
the  act  here  in  question  embraces  by  its  term's  all  per- 
sons, firms,  corporations,  or  associations  of  persons 
who  combine  their  capital,  skill  or  acts  for  any  of  the 
purposes  specified,  while  the  ninth  section  declares  that 
the  statute  shall  not  apply  to  agriculturists  or  live- 
stock dealers  in  respect  of  their  products  or  stock  in 
hand.  If  the  latter  section  be  eliminated  as  unconsti- 
tutional, then  the  act,  if  it  stands,  will  apply  to  agricul- 
turists and  live  stock  dealers.  Those  classes  would  in 
that  way  be  reached  and  fined,  when,  evidently,  the 
Legislature  intended  that  they  should  not  be  regarded 
as  offending  against  the  law,  even  if  they  did  combine 
their  capital,  skill  or  acts  in  respect  of  their  products 
or  stock  in  hand.  Looking  then  at  all  the  sections  to- 
gether, we  must  hold  that  the  Legislature  would  not 
have  entered  upon  or  continued  the  policy  indicated  by 
the  statute  unless  agriculturists  and  live-stock  dealers 
were  excluded  from  its  operation  and  thereby  protect- 
ed from  prosecution.    The   result   is  that  the   statute 


Chap.  G]  PowEu  OF  Taxation.  141 

must  be  regardod  as  an  entirety,  and  in  that  view  it 
must  be  adjudged  to  l)e  unconstitutional  as  denying 
the  equal  protection  of  the  laws  to  those  within  its  jur- 
isdiction who  are  not  embraced  by  tlie  ninth  section." 
But  persons  are  not  embraced. 

The  obnoxious  section  of  the  Illinois  statute  is  em- 
braced in  these  words  as  quoted  in  the  opinion  at  page 
554,  near  the  bottom : 

"Section  9.  The  provisions  of  this  act  shall  not 
apply  to  agricultural  products  or  live  stock  while  in  the 
hands  of  the  producer  or  raiser." 

This  act  shall  not  apply  to,  first,  agricultural  pro- 
ducts in  the  hands  of  the  ])roducer  or  raiser;  second, 
to  live  stock  in  the  hands  of  the  })roducer  or  raiser.  The 
Illinois  Legislature  did  not  intend  that  agriculturists 
might  do  the  forbidden  things  without  liability  to  pros- 
ecution. It  did  not  intend  that  raisers  or  producers  of 
live  stock  should  not  be  subject  to  the  penalties  of  the 
law.  Agriculturists  and  stock  raisers  could  not  com- 
bine to  make  sewer  pipe  and  control  the  market  price. 
They  are  within  the  statute  notwithstanding  section  9. 

Section  8  declares  void  any  contract  or  agree- 
ment made  in  violation  of  the  law,  and  the  contract  is 
not  enforcible  in  the  courts.  Of  course  an  executory 
contract  could  not  be  enforced.  But  if  the  contract  is 
executed  by  delivery  and  acceptance  of  the  property, 
then  the  contract  is  void  and  the  purchaser  has  the  sel- 
ler's property  not  ])aid  for  and  the  seller  will  quickly 
arrive  at  the  locus  penitoifide  and  sue  for  the  value  of 
the  property.  The  seller  will  repudiate  the  illegal  con- 
tract and  sue  for  the  property  or  its  value. 

Section  10  ]>rovides  that  any  purchaser  sliall  not 
be  liable  for  the  price  or  i)ayment  of  such  articles  and 
may  plead  the  act  as  a  defense.  But  if  sold  for  cash 
the  purchaser  has  no  recourse  or  remedy.  With  all 
due  respect  to  the  justice  rendering  tlie  o]iinion  of  the 


142  Law  of  Local  Taxation.  [Chap.  6 

court  and  the  justices  concurring  therein,  the  doctrine 
announced  is  a  very  dangerous  one.  This  Illinois  stat- 
ute undoubtedly  intended  to  include  and  did  include 
sewer  pipe  manufacturing  and  selling  and  what  the 
Union  Sewer  Pipe  Manufacturing  Company  did  was 
intended  to  l>e  prohibited  and  the  contract  was  intend- 
ed to  be  rendered  void. 

The  State  of  Illinois  undoubtedly  needs  and  uses  a 
vast  amount  of  sewer  and  drainage  pipe,  as  well  as  a 
large  amount  of  agricultural  products  and  live  stock. 

May  the  Legislature  enact  laws  on  this  subject  and 
prevent  combinations  and  trusts  in  drainage  and  sewer 
pipe,  its  manufacture  and  sale,  or  may  combinations 
and  trusts  be  made  to  an  unlimited  extent  with  no 
power  in  the  Legislature  to  afford  relief? 

The  court  say  (and  very  properly)  that  this  Illi- 
nois statute  is  very  general,  and  agriculturists  and 
stock  raisers  are  included  in  the  several  sections  but  ex- 
cluded by  section  9. 

Suppose  the  language  of  the  Illinois  statute  had 
been  changed,  and  sewer  and  drainage  pipe  makers  and 
dealers  had  been  named  by  specific  words  in  the  legis- 
lative aet  and  all  others  had  been  omitted,  would  such 
statute  contravene  the  fourteenth  amendment  as  being 
a  denial  of  the  equal  protection  of  the  laws?  Say  the 
court  at  page  556: 

''That  the  arrangement  or  coirfbination  made  be- 
tween the  Union  Sewer  Pipe  Company  and  other  com- 
jianies,  cor])orations  and  firms,  created  such  a  trust  as 
the  Illinois  statute  forbids,  is  manifest  from  the  evi- 
dence in  the  record.  It  is  equally  true  that  if  the  plain- 
tiff was  an  Illinois  corporation,  its  charter  could  be  for- 
feited and  an  end  put  to  its  corporate  existence  by  pro- 
ceedings instituted  by  the  attorney-general  of  the  State 
under  sections  1,  2,  and  3.  It  is  also  clear  that,  if  the 
statute  is  not  altogether  invalid  the  defendants  could 


Chap.  6]  Power  of  Taxation.  143 

plead  non-liability  for  the  i)ijie  purcliase<l  by  tliem  up- 
on the  ground  that  the  jilaintilY  was,  under  the  statute 
of  Illinois,  an  illegal  combination  and  the  contracts 
which  it  made  with  the  defendants  were  void.  [Se<'- 
tions  8  and  10.]  The  statute  expressly  authorizes  such 
a  defense.  In  that  particular,  the  defense  based  upon 
the  statute  of  Illinois  differs  from  the  other  special  de- 
fenses. ' ' 

Conform  the  statute  to  the  particular  case  in  hand 
so  as  to  include  all  sewer  and  drainage  pipe  and  the 
statute  will  read  thus : 

**See.  1.  That  a  trust  is  a  combination  of  capital, 
skill  or  acts  by  two  or  more  persons,  firms,  corpora- 
tions or  associations  of  persons,  or  two  or  more  of 
them  in  the  manufacture,  transportation,  and  sale  of 
sewer  and  drainage  pipe  for  either,  any  or  all  of  the 
following  purposes:  First,  to  create  or  carry  out  re- 
strictions in  trade  in  sewer  and  drainage  pipe ;  second, 
to  limit  or  reduce  the  production  or  increase  or  reduce 
the  price  of  sewer  and  drainage  pipe ;  third,  to  prevent 
competition  in  the  manufacture,  making,  transporta- 
tion, sale  or  purchase  of  sewer  and  drainage  pipe; 
fourth,  to  fix  at  any  standai'd  or  figure  whereby  its 
l)rice  to  the  public  shall  be  in  any  manner  controlled  or 
established  upon  any  sewer  or  drainage  pipe  intended 
for  sale,  use  or  consumption  in  this  State,  or  to  estab- 
lish any  pretended  agency  whereby  the  sale  of  said 
sewer  or  drainage  pipe  shall  be  covered  up  and  made  to 
appear  for  the  original  vendor  for  a  like  pur]iose  or 
purposes,  and  to  enable  such  original  vendor  or  manu- 
facturer to  control  the  wholesale  or  retail  ]u-ice  of  any 
such  sewer  or  drainage  ]>i]^e  after  the  title  to  such 
sewer  or  drainage  pi])e  shall  have  passed  from  such 
vendor  or  manufacturer;  fifth,  to  make,  enter  into  or 
examine  or  carry  out  any  contract,  obligation  or  agree- 
ment of  any  kind  or  description  by  which  they  shall 


1-14  Law  of  Local  Taxation.  [Chap.  6 

bind  or  have  bound  themselves  not  to  sell,  dispose  of  or 
transport  any  such  sewer  or  drainage  pipe  below  a 
common  standard,  figure  or  card  or  list  price,  or  by 
which  they  shall  agree  in  any  manner  to  keep  the  price 
of  such  sewer  and  drainage  pipe  at  a  fixed  or  graduated 
figiire,  or  by  which  they  shall  in  any  manner  settle  or 
establish  the  price  of  any  sewer  or  drainage  pipe  be- 
tween them  or  themselves  and  others  or  to  preclude  a 
free  and  unrestricted  competition  among  themselves  or 
others  in  the  sale  or  transportation  of  any  such  sewer 
or  drainage  pipe,  or  by  which  they  shall  agree  to  pool, 
combine  or  unite  any  interest  they  may  have  in  con- 
nection with  the  sale  or  transportation  of  any  such 
sewer  and  drainage  pipe,  that  its  price  might  in  any 
manner  be  affected. 

''Sec.  2.  That  any  corporation  holding  a  charter 
under  the  laws  of  this  State  which  shall  violate  any  of 
the  provisions  of  this  act  shall  thereby  forfeit  its  char- 
ter and  franchise,  and  its  corporate  existence  shall 
cease  and  determine. 

''Sec,  3.  For  a  violation  of  any  of  the  provisions 
of  this  act  by  any  corporation  mentioned  herein,  it 
shall  be  the  duty  of  the  attorney-general  or  prosecuting 
attorney,  upon  his  own  motion,  to  institute  suit  or  quo 
warranto  proceedings  at  any  county  in  this  State  in 
which  such  corporation  exists,  does  business  or  may 
have  a  domicile,  for  the  forfeiture  of  its  charter  rights 
and  franchise,  and  the  dissolution  of  its  corjiorate  ex- 
istence. 

' '  Sec.  4.  Every  foreign  corporation  violating  any 
of  the  provisions  of  this  act  is  hereby  denied  the  right 
and  prohibited  from  doing  any  business  within  this 
State,  and  it  shall  be  the  duty  of  the  attorney-general 
to  enforce  this  provision  by  injunction  or  other  proper 
proceeding,  in  any  county  in  which  such  foreign  cor- 
poration does  business,  in  the  name  of  the  State  on  his 
relation. 


Chap.  ()]  Power  of  Taxation.  145 

"Sec.  5.  Any  violation  of  either  or  ail  of  the  pro- 
visions of  section  one  of  this  act  shall  be  and  is  hereby 
declared  to  be  a  conspiracy  against  trade  and  a  misde- 
meanor; and  any  person  who  may  be  or  may  become 
engaged  in  any  such  conspiracy,  or  take  part  therein, 
or  aid  oi-  advise  in  its  commission,  or  who  shall,  as 
principal,  manager,  director,  agent,  servant  or  em- 
ployee, or  in  any  other  capacity,  knowingly  carry  out 
any  of  the  stipulations,  })urposes,  prices,  rates,  orders 
thereunder,  or  in  pursuance  thereof,  shall  be  punished 
by  fine  not  less  than  $2,CM)0  nor  more  $5,000. 

"Sec.  6.  In  any  indictment  or  information  for  any 
offense  named  in  this  act,  it  is  sufficient  to  state  the  pur- 
poses and  effects  of  the  trusts  or  combinations  in  sewer 
and  drainage  pipe  and  that  the  accused  was  a  member 
of,  acted  with  or  in  ])ursuance  of  it,  without  giving  its 
name  or  description,  or  how  or  where  it  was  created. 

"  Sec.  7.  In  prosecutions  under  this  act  it  shall  be 
sufficient  to  prove  that  a  trust  or  combination  as  de- 
fined herein  exists,  and  that  the  defendant  belonged  to 
it  or  acted  for  or  in  connection  with  it,  without  proving 
all  the  members  belonging  to  it,  or  proving  or  produc- 
ing any  article  of  agreement  or  any  written  instrument 
on  which  it  may  have  been  based,  or  that  it  was  evi- 
denced by  any  written  instrument  at  all. 

"Sec.  8.  That  any  contract  or  agreement  in  vio- 
lation of  the  provisions  of  this  act  shall  be  absolutely 
void  and  not  enforceable  either  in  law  or  equity. 

"Sec.  9.  Will  be  omitted  as  of  no  use  because  the 
act  is  directed  against  sewer  and  drainage  pipe  alone. 

"Sec.  10.  Any  purchaser  of  any  sewer  or  drain- 
age pipe  from  any  person,  firm,  corporation  or  associa- 
tion of  persons,  or  of  two  or  more  of  them,  transacting 
business  contrary  to  any  ]>rovision  of  the  preceding 
sections  of  this  act,  shall  not  be  liable  for  the  ]irice  or 
payment  of  such  sewer  or  drainage  pipe  and  may  i)lead 

10 


146  Law  of  Local  Taxation.  [Chap.  6 

this  as  a  defense  to  any  suit  for   such  \)vice   or   pay- 
ment. ' ' 

It  is  said  that  the  Legislature  of  Illinois  cannot 
make  a  class  and  declare  penalties  against  the  class, 
and  then  by  an  independent  section  provide  that  cer- 
tain persons  in  this  class  shall  be  exempt  from  the  pen- 
alties provided  in  the  act.  But  they  can  make  classes. 
Can  they  declare  who  shall  be  members  of  the  class? 
Then  they  can  determine  who  shall  not  be  members  of 
the  class.  This  is  what  the  Illinois  Legislature  did. 
Farmers  and  stock  raisers  were  not  in  the  class. 
Makers  of  sewer  pipe  were  included  in  the  class  and 
farmers  excluded.  It  was  not  intended  that  farmers 
might  make  sewer  and  drainage  pipe,  and  if  they  did 
so,  they  would  not  be  amenable  to  the  act  of  the  Illi- 
nois Legislature.  It  was  not  intended  that  if  stock  rais- 
ers should  make  sewer  and  drainage  pipe,  and  if  they 
made  such  sewer  and  drainage  pipe  and  entered  into 
combinations  and  trusts,  they  were  not  amenable  to  the 
act.  No  such  exemption  was  intended.  The  classifica- 
tion is  not  arbitrary  as  if  the  Illinois  Legislature  de- 
clared that  all  red-headed  men  should  be  exempt  from 
all  penalties  enjoined  by  the  act,  that  they  might  make 
and  sell  sewer  and  drainage  pipe  and  make  all  the  com- 
binations, trusts  forbidden  by  the  act  without  incur- 
ring the  penalties  inflicted  on  men  not  red-headed.  Man, 
woman  and  child,  old  and  young,  rich  and  poor,  white 
and  black,  citizen  and  denizen,  alien  may  raise  agricul- 
tural products  and  live  stock.  Every  one  has  the  abso- 
lutely equal  protection  of  the  law.  It  is  denied  to  no 
one.  ''The  provisions  of  this  act  shall  not  apply  to 
agricultural  products  or  live  stock  while  in  the  hands 
of  the  producer  or  raiser."  The  product  is  exempt  no 
difference  who  may  be  the  producer.  Live  stock  is  ex- 
empt no  difference  who  may  be  the  raiser.  Every  one 
receives  the  equal  protection  of  this  Illinois  statute.  It 


Cha]).  (]]  Power  of  Taxation.  147 

is  indeed  somewhat  singular  tliat  the  Illinois  Legisla- 
ture should  have  power  to  declare  that  fanners  and 
stock  raisers  were  in  the  class  and  yet  they  have  not  the 
l)0wer  to  declare  that  thoy  were  not  in  class.  They  have 
l)0wer  to  include,  but  they  cannot  exclude.  The  power 
to  declare  who  shall  be  in  the  class,  implies  the  power 
to  declare  wiio  shall  not  be  in  the  class.  Everj^  sewer 
])i]ie  manufactui'er  in  the  TTnited  States  may  go  to  Illi- 
nois and  raise  all  the  potatoes  he  wants,  even  if  they 
cost  him  two  dollars  each,  and  he  will  not  be  amenable 
to  the  penalties  of  this  Illinois  statute.  Sewer  and 
drainage  i)ii)e  are  within  the  statute.  Potatoes  are  not 
within  the  statute  as  long  as  the  raiser  keeps  them  in 
his  possession.  Com  and  wheat  are  in  the  samie  class 
till  they  get  out  of  the  farmer's  hands  and  go  to  eleva- 
tors in  Chicago  and  there  combinations  and  trusts  are 
harmful  and  are  forbidden  by  all  to  all  w^ithout  excep- 
tion and  without  excluding  any  man,  woman  or  child, 
white  or  black,  rich  or  poor.  Illinois  did  not  deny  to 
any  person  within  its  jurisdiction  "the  equal  protec- 
tion of  the  laws." 

The  Illinois  Legislature  may  pass  laws  to  prevent 
horse  stealing;  they  may  make  a  class  excluding  work 
oxen  from  the  class.  This  may  be  done  by  an  express 
exclusion  or  an  implied  exclusion  by  failing  to  name 
work  oxen,  for  ''expressio  unius^  exclusio  alterins." 
Horse  stealing  is  forbidden  to  all.  The  horse  thief 
when  arraigned  in  court  pleads  that  he  is  entitled  to  the 
equal  protection  of  the  law  wath  the  ox  thief.  Under 
such  a  construction,  the  fourteenth  amendment  becomes 
a  veiy  strong  ]irotection  to  horse  thieves.  Ox  thieves 
are  excepted  and  courts  must  presume  that  the  Legis- 
lature would  not  have  passed  the  law  if  they  had  had  an 
idea  that  ox  thieves  were  not  to  be  punished.  The  Illi- 
nois statute  forbids  things,  not  persons.  The  things 
forbidden  can  not  be  done  by  any  one. 


1-18  Law  of  Local  Taxation.  [Chap.  6 

The  Illinois  statute  provides  that  this  law  shall 
not  apply  to  agricultural  products  or  live  stock  in  the 
hands  of  the  raiser  or  producer.  The  law  does  apply 
to  the  agricultural  product  and  live  stock  after  it  leaves 
the  hands  of  the  i)roducer  or  raiser.  The  Illinois  act 
would  be  different  if  it  had  provided  that  it  did  not  ap- 
ply to  "agriculturists  and  stock  raisers"  in  place  of 
agricultural  products  and  live  stock.  The  constitu- 
tional amendment  is,  "nor  shall  any  State  deprive  any 
person  of  life,  liberty  or  property  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  law. ' '  This  does  not  nuean 
that  the  State  must  give  the  same  equal  protection  to 
the  gambler  in  his  gambling  that  it  gives  to  the 
preacher  in  his  preaching,  or  the  teacher  in  his  teach- 
ing, or  the  thief  in  his  thieving.  Things  are  prohibited 
by  the  fourteenth  amendment,  not  names.  It  was  not 
intended  that  rogues  should  be  protected  in  their 
roguery  equal  to  the  protection  to  honest  men  in  their 
honesty. 

"We  have  seen  that  under  that  statute  all  except 
producers  of  agricultural  commodities  and  raisers  of 
live  stock,  who  combine  their  capital,  skill  or  acts  for 
any  of  the  purposes  named  in  the  act,  may  be  punish- 
ed as  criminals,  while  agriculturists  and  live  stock  rais- 
ers, in  respect  of  their  j^roducts  or  live  stock  in  hand, 
are  exempted  from  the  operation  of  the  statute,  and 
may  combine  and  do  that  which,  if  done  by  others, 
would  be  a  crime  against  the  State." 

Suppose  producers  of  agricultural  commodities 
and  raisers  of  live  stock  combine  their  capital,  skill  or 
acts  for  making  and  selling  sewer  and  drainage  pipe, 
just  as  the  Union  Sewer  Pipe  Company  did,  would  they 
be  exempt  from  punishment  as  criminals?  Is  this  the 
intention  of  the  Illinois  Legislature?  The  court  con- 
tinuing say,  page  560 : 


Chap.  6]  Power  of  Taxation.  149 

"Tho  statute  so  provides,  notwithstanding  persons 
engaged  in  trade  or  in  the  sale  of  mei'diaiidise  and 
commodities,  within  tlie  limits  of  a  State,  and  a<>^riful- 
turalists  and  raisers  of  live  stock,  are  all  in  the  same 
general  class;  that  is,  they  are  all  alike  engaged  in  do- 
mestic trade,  which  is,  of  right,  open  to  all,  subject  to 
such  regulations,  applicable  alike  to  all  in  like  condi- 
tions, as  the  State  may  legally  prescribe." 

And  there  is  not  one  single  nuember  of  that  class 
that  can  make  sewer  pipe  and  enter  into  the  forbidden 
combinations  without  liability  to  punishment.  The 
statute  did  not  intend  to  ]irohibit  the  fanner  or  stock 
raiser  from  making  sewer  ]iipe.  The  statute  did  not 
prohibit  the  sewer-])ipe  maker  from  producing  agricul- 
tural products  or  raising  live  stock.  The  merchant,  the 
mechanic,  the  lawyer,  the  doctor,  the  preacher,  the 
sewer-pipe  maker  may  all  raise  agricultural  ])roducts, 
and  the  whole  class  are  treated  exactly  alike  under  this 
Illinois  statute.  And  the  merchant,  the  mechanic,  the 
lawA'er,  the  doctor,  the  preacher,  the  teacher,  the  far- 
mer, and  the  stock  raiser  may  all  make  sewer  pipe.  It 
is  not  prohibited  to  any  one  of  the  class.  It  was  not  in- 
tended to  be  allowed  to  one  of  the  class  and  prohibited 
to  another  of  the  class. 

The  Illinois  Legislature  provides  that  certain  acts 
should  not  be  done,  irrespective  of  who  was  the  actor. 
The  prohibition  is  absolutely  universal,  even  the  gov- 
ernor of  the  State,  judges  of  the  Supreme  Court  and 
all  the  members  of  the  Legislature,  the  whole  State 
without  one  exception — all  are  included.  The  Illinois 
Legislature  by  the  act  in  question  did  not  ''deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of 
the  laws."  Nobody  is  prohibited  l)y  the  statute  from 
raising  live  stock;  nobody  is  ])rohibited  by  the  statute 
from  raising  agricultural  ]iroducts.  If  the  Illinois 
statute  had  ]-)rovi(led  that    agriculturalists    and    stock 


150  Law  of  Local  Taxation.  [Chap.  6 

raisers  should  not  be  deemed  within  the  legislative 
enactments,  then  the  sewer-pipe  makers  might  raise  an 
acre  of  agricultural  products  and  make  millions  of 
sewer  pipe,  and  then  the  courts  might  inquire  whether 
the  sewer-]>ipe  maker  was  really  an  agriculturist  or  was 
his  business  a  mere  pretext  or  sham  so  as  to  bring  his 
acts  and  products  within  the  law.  The  Illinois  Legis- 
lature avoided  this  trouble  by  prohibiting  certain  acts 
no  difference  who  was  the  actor.  It  is  a  mistake  to  say 
that  the  Illinois  Legislature  intended  that  agricultural- 
ists might  produce  agricultural  products  and  enter  into 
all  sorts  of  combinations  and  trusts  without  criminal 
or  civil  liability.  The  Illinois  statute  provides  that  the 
provisions  of  the  act  shall  not  apply  to  agricultural 
products  or  live  stock.  Suppose  we  leave  off  the  re- 
striction while  "in  the  hands  of  the  producer  or 
raiser,"  leaving  the  statute  to  except  agricultural  pro- 
ducts and  live  stock.  It  does  not  exempt  black  men  or 
white  men  or  red-haired  men  or  freckle-faced  women. 
It  does  not  exemj^t  the  person  at  all,  but  the  product. 
They  exempt  the  product  and  not  the  producer.  May 
the  Legislature  limit  the  exemption  of  this  product  still 
further  by  confining  it  to  the  time  that  the  product  is  in 
the  hands  of  the  producer?  The  mischief  of  the  trust 
and  combination  becomes  apparent  and  exists  only  af- 
ter the  corn  and  wheat  have  left  the  hands  of  the  pro- 
ducer and  gotten  to  the  boards  of  trade  for  purposes 
not  clearly  distinguished  from  gambling.  May  the  Leg- 
islature protect  the  producer  and  consumer  from  the 
evil  effects  of  combinations  and  trusts? 

This  case  and  that  of  Newhy  v.  Platte  County,  25 
Mo.  258,  are  examples  of  the  judicial  twisting  process 
of  legislative  enactments.  Acts  are  forbidden  under 
the  Illinois  legislative  enactment  now  under  discus- 
sion. ISTo  state  can  under  the  fourteenth  amendment  to 
the  Constitution  of  the  United  States  deny  to  any  per- 


Chap.  GJ  Power  of  Taxation.  151 

son  the  equal  protection  of  the  hiws.  Tlie  Illinois  legis- 
lative act  is  judicially  changed  so  as  to  punish  all  for 
the  forbidden  acts  except  agriculturists  and  stock  rais- 
ers. If  the  State  punish  the  strumpet  for  her  strumpe- 
try,  it  must  likewise  punish  the  virtuous  woman  for  her 
virtue.  The  Missouri  act  is  so  changed  as  to  include 
only  special,  peculiar,  exceptive  benefits.  A  general 
benefit  would  render  the  Missouri  act  unconstitutional. 

''If  the  latter  section  [the  one  excluding  agricul- 
tural i)roducts  and  live  stock]  be  eliminated  as  uncon- 
stitutional, then  the  act  if  it  stands  will  apply  to  agri- 
culturists and  live  stock  dealers ;  these  classes  would  in 
that  way  be  reached  and  fined  when  the  Legislature  did 
not  so  intend.  We  must  hold  that  the  Legislature  would 
not  have  entered  upon  or  continued  the  policy  indi- 
cated by  the  statute  unless  agriculturists  and  live-stock 
dealers  were  excluded  from  its  operation  and  thereby 
protected  from  prosecution." 

The  live  stock  dealer  and  the  agriculturist  are  no 
more  excluded  or  exempted  by  the  act  than  the  maker 
and  seller  of  sewer  pipe  or  the  red-haired  man  or 
freckled-faced  woman. 

What  the  Union  Sewer  Pipe  Company  did,  did  not 
render  their  contract  with  the  purchasers  of  sewer  pipe 
void  under  any  statute  of  the  United  States.  The  sale 
of  sewer  pipe  by  the  Union  Sewer  Pipe  Company  was 
not  void  or  illegal  under  the  general  common  law  of 
Illinois.  Under  the  Illinois  statute  what  this  Union 
SeW'er  Pipe  Company  did,  rendered  its  contract  of  sale 
void  and  it  could  not  recover  on  such  contract  of  sale. 
If  an  agriculturist  or  live-stock  raiser  had  done  in  sewer 
pipe  what  the  Union  Sewer  Pipe  Company  did,  the 
live-stock  raiser  and  the  agriculturist  would  have  been 
subject  to  all  the  liabilities  to  which  the  sewer  pipe  com- 
pany was  subject.  What  the  sewer  pipe  company  did, 
did  not  render  the  contract  of  sale  of  sewer  pipe  void 


152  Law  of  Local  Taxation.  [Cliap.  6 

under  general  common  law.  If  the  subject  matter  of 
that  contract  of  sale  had  be«n  agricultural  products  in 
lieu  of  sewer  pipe,  that  contract  of  sale  of  agricultural 
products  would  not  be  void  under  general  common  law. 

The  Legislature  of  Illinois  changed  the  general 
common  law  in  reference  to  the  contract  of  sale  of  sewer 
pipe,  when  the  seller  is  a  member  of  some  forbidden 
trust.  It  makes  no  difference  whether  the  seller  of 
sewer  or  drainage  pipe  be  an  agriculturist  or  live  stock 
raiser,  he  can  not  recover  on  the  forbidden  contract  of 
sale  of  drainage  pipe.  The  common  law  has  been 
changed.  A^^lo  but  the  Illinois  Legislature  shall  deter- 
mine the  extent  of  that  change! 

Corn  and  wheat  are  agricultural  products,  and  af- 
ter they  have  left  the  hands  of  the  raiser  then  they  come 
within  the  Illinois  statute.  A  trust  may  be  formed  to 
obtain  all  the  wheat  and  flour  in  Illinois ;  the  products 
may  be  cornered  and  the  consumers  may  be  compelled 
to  pay  exorbitant  prices.  The  Illinois  statute  made 
such  sales  void,  and  even  if  the  wheat  were  delivered, 
no  recoveiy  could  be  had  on  the  contract  if  tlie  seller 
was  a  member  of  this  forbidden  tnist.  If  all  the  wheat 
raisers  of  Illinois  had  combined  in  a  trust  to  increase 
the  price  of  the  wheat  they  raise  while  in  their  hands, 
then  this  contract  they  make  among  themselves  can  not 
be  enforced  at  comimon  law.  If  one  member  of  the 
trust  violate  the  trust  agreement,  no  action  lies  at  com- 
mon law  for  damages  for  the  breach  of  such  agreement. 
This  Illinois  statute  left  the  wheat  raisers  of  Illinois, 
with  reference  to  the  wheat  they  raised  and  in  their  pos- 
session, just  where  the  common  law  left  them.  They 
could  maintain  no  action  for  damages  for  the  breach 
of  this  trust  agreement.  If  they  sold  the  wheat  they 
raised,  they  could  recover  on  the  contract  of  sale  un- 
der the  general  common  law,  notwithstanding  the 
raiser  of  the  wheat  was  a  member  of  this  illegal  trust. 


Cbap.  ()]  Power  of  Taxation.  153 

The  Illinois  statute  did  not  change  that  rule  of  tlie  com- 
mon law.  There  are  so  many  wheat  raisers  that  it  is 
physically  impossible  to  get  them  into  a  trust  which 
may  at  any  time  be  violated  by  any  one  or  more  without 
redress  at  law  or  in  e(|uity  or  under  any  statute. 

The  wheat  raised  by  any  one  while  in  his  posses- 
sion as  raiser  is  not  wnthin  the  Illinois  statute.  The 
law  applies  to  the  product,  not  to  the  producer.  There 
can  be  no  difference  as  to  what  person,  firm  or  corpora- 
tion may  be  producer.  All  producers  have  the  equal 
protection  of  this  Illinois  statute. 

A  father  presented  to  his  son  a  bundle  of  sticks 
tied  together  and  requested  the  son  to  break  the  bundle 
by  putting  one  hand  at  each  end  and  his  knee  in  the 
middle  and  drawing  the  two  ends  towards  his  body. 
The  son  tried  in  vain  to  break  the  bundle.  In  union 
there  is  strength.  The  father  untied  the  bundle  and 
broke  the  sticks  one  by  one  without  difficulty.  Headers 
will  recollect  the  old  legend.  The  Legislature  of  Illi- 
nois might  have  broken  the  trusts  if  it  had  not  tied 
them  all  up  in  one  bundle.  In  union  there  is  strength 
even  among  the  trusts,  knowing  as  one  must  necessar- 
ily know  the  stolid  indifference  of  the  honest  masses 
and  the  pernicious  activity  of  the  dishonest  trusts.  The 
Illinois  st<itute,  as  interpreted  by  the  courts,  ties  all 
the  trusts  together  in  one  bundle  and  then  in  vain  tries 
to  break  the  whole  bundle.  Disastrous  failure  was  of 
course  the  result.  The  Legislature  had  all  the  neces- 
sary power  and  authority  to  break  the  sewer-i)ipe  trust, 
but  the  other  trusts  combined  with  it  proved  too  pow- 
erful. 

Our  local  tax-laws  in  all  the  states  under  the  tax 
power  have  tied  uj)  large  bundles  of  sticks  and  the 
strings  are  so  strong  we  can  not  break  them,  nor  untie 
the  bundles  or  break  the  sticks.  This  is  the  lesson 
taught  by  the  Illinois  statute  and  decisions  holding  it 


15-4  Law  of  Local  Taxation.  [Chap.  6 

invalid.  Of  course  no  one  can  deny  that  this  Illinois 
statute  is  highly  penal  in  its  character.  A  statute 
which  allows  any  one  to  buy  sewer  pipe  and  to  keep  the 
sewer  pipe  and  sell  or  use  it,  and  yet  incur  no  liability 
whatever  either  to  pay  the  contract  price  or  return  the 
sewer  pipe  or  to  pay  what  it  is  reasonably  worth,  is 
highly  penal  in  its  character  and  ought  to  be  strictly 
construed,  and  yet  the  State  of  Illinois  ought  to  be  able 
to  prevent  hurtful,  injurious  trusts  by  such  penalties 
as  it  may  prescribe  to  be  inflicted  upon  all  who  may  do 
the  prohibited  acts,  without  any  respect  as  to  who  may 
be  the  actor  or  doer  of  the  prohibited  thing. 


CHAPTER  7. 

POWER  OF  GOVERNMEXT  AS  TO   PROPERTY,  BENEFITS  AND 

DAMAGES. 

In  this  chapter  is  presented  some  considerations 
as  to  the  nature  of  that  power  of  the  government  which 
determines  whether  a  person  has  property,  what  prop- 
erty, how  much,  and  its  value,  and  the  benefits  or  dam- 
ages to  it  by  reason  of  the  acts  of  the  public  or  indi- 
viduals, both  as  to  the  fact  and  amount  of  benefit  or 
damage. 

The  power  to  determine  the  value  of  property  is 
judicial.  This  appears  fully  in  Smith  et  al.  v.  Kansas^ 
City,  128  Mo.  23,  et  seq.  (a".  D.  1894),  a  suit  for  dam- 
ages to  abutting  property  by  reason  of  grading  the 
street.  The  first  instruction  given  for  the  plaintiff  is 
in  effect  that,  ''If  the  market  value  of  said  property 
was  depreciated  by  said  grading"  then  the  jury  must 
find  for  the  plaintiff  and  if  the  jury  find  for  the  plain- 
tiff then  their  verdict  must  be  equal  to  "The  amount 
that  the  market  value  of  said  property  was  diminished 
by  such  act  of  the  defendant"  Kansas  City.  The  mar- 
ket value  of  the  property  before  the  improvement  and 
the  market  value  after  the  improvement  must  be  de- 
teniiined.  The  difference  will  be  benefit  or  damage 
according  to  the  fact  and  evidence  by  which  such  fact  is 
established. 

By  the  third  instruction  the  jury  were  told  that  in 
estimating  the  damages  to  said  property  they  might 
take  into  consideration  certain  elements,  such  as  the 
"cost  of  putting  the  property  on  grade,  or  building 
retaining  walls  and  other  elements  of  damage."  allow- 
ing, however,  as  an  offset,  any  appreciation  or  increase 

(155) 


156  Law  of  Local  Taxation.  [Chap.  7 

in  value  of  said  i)roi>erty  by  reason  of  the  grading  of 
said  street.  For  the  defendant  the  jury  were  told  that, 
''If  the  grading  was  a  special  benefit  to  the  real  estate 
along  with  other  property  in  the  vicinity  of  plaintiff's 
property,  and  that  such  special  benefit  equaled  or  ex- 
ceeded the  damages,  then  plaintiff  is  not  entitled  to  re- 
cover, ' '  etc. 

The  legislative  power  can  not  determine  the  mar- 
ket value  of  this  lot  before  the  improvement  or  after 
this  improvement.  How  then  can  the  legislative  power 
determine  that  the  improvement  was  a  damage  or  ben- 
efit? The  Missouri  Constitution,  as  well  as  the  consti- 
tutions of  nearly  all  the  states,  now  provides  that  *  *  pri- 
vate property  shall  not  be  taken  or  damaged  for  public 
use  without  just  compensation."  This  "just  compen- 
sation," either  for  taking  or  damaging,  must  be  ascer- 
tained by  commissioners  or  a  jury  as  provided  bj^  law ; 
the  title  must  not  be  divested;  the  property  must  not 
be  disturbed  until  this  "just  compensation,"  either  for 
taking  or  damaging,  has  been  paid  to  the  owner  or  into 
court  for  the  owner. 

According  to  the  language  used  by  tbe  framers  of 
the  Constitution,  it  was  not  intended  that  this  "just 
compensation,"  either  for  taking  or  damaging,  should 
be  ascertained  by  the  mayor  and  common  council  of  any 
city,  town  or  village,  or  under  or  by  any  legislative  or 
executive  power.  This  "just  compensation"  must  be 
paid  to  the  landowner  or  into  court  for  him.  Into  what 
court?  Is  the  board  of  trustees  of  any  town  or  village 
the  court  contemplated  by  the  Constitution?  Is  the 
common  council  of  any  city  the  court  contemplated  by 
the  Constitution  into  which  this  "just  compensation" 
must  be  paid  for  the  landowner?  Then  the  "just  com- 
pensation" is  paid  into  some  court  for  the  owner.  Who 
shall  determine  this  question  of  ownership.  Does  the 
determination  of  this  question  of  ownership  devolve  on 


Chap.  7]  PowEK  OF  Government.  157 

the  .iiuUcial  departiiioiit  of  the  governiueiit,  or  on  the 
legislative  department,  or  on  the  executive  department? 
Wliat  kind  of  question  is  it  to  determine  the  "just  com- 
pensation" for  land  taken  or  damaged  for  i)ublic  use? 

The  Supreme  Court  of  ^lissouri  in  A.  1).  1857,  in 
Newby  v.  Platte  County,  25  Mo.  258,  at  263,  say: 

"If  the  state  government  i)ossessed  no  authority- 
over  ]jrivate  i)roperty,  except  tliat  of  taking  it  for  the 
public  use  upon  rendering  the  owner  a  just  compensa- 
tion, it  would  seem  that  under  this  provision,  the  owner 
would  be  entitled  to  the  full  money  value  of  his  prop- 
erty without  any  deduction.  The  rule  of  constitutional 
Ian-  being  that  private  property  can  not  he  taJien  for 
public  use  by  the  authority  of  the  Legislature  irUhout 
a  just  compensation,  it  follows  that  irhat  is  to  be  con- 
sidered as  compensation,  within  the  meaning  of  the 
clause,  is  a  question  of  law  for  the  courts  and  not  a 
matter  for  the  Legislature;  and  under  such  a  Constitu- 
tion as  we  have  supposed,  with  no  other  power  over 
private  property  than  that  of  taking  it  for  the  public 
use  upon  making  the  owner  a  just  compensation,  it 
would  be  quite  beyond  the  scope  of  the  legislative  au- 
thority to  declare  that  the  benefit  derived  by  the  land- 
owner from  the  road  is  the  just  compensation  secured 
by  the  Constitution." 

The  ])ublic  take  for  a  highway  part  of  an  owner's 
land,  leaving  part  of  it.  What  is  the  owner's  "just 
compensation?"  Tt  is  not,  what  is  he  damaged?  To 
ascertain  this,  just  compensation  must  be  done  by  some 
department  of  the  government.  May  this  just  compen- 
sation be  benefits  in  part  and  cash  in  part?  Wliat  sort 
of  question  is  this?  Is  it  a  question  for  the  courts  or 
the  Legislature  or  the  executive?  What  department  of 
the  government  is  to  determine  this  question?  If  the 
just  compensation  of  the  Constitution  may  be  made  in 
benefits,  who  shall  determine  the  fact  and  amount  of 


158  Law  of  Local  Taxation.  [Chap.  7 

benefits?  Can  a  general  benefit  be  a  part  of  this  just 
compensation  of  the  Constitution?  Who  shall  deter- 
mine this  question?  In  its  determination  what  kind  of 
power  is  exercised  I 

The  question  as  to  the  nature  of  the  power  to  as- 
certain the  "just  compensation"  for  property  taken 
for  public  use,  was  discussed  in  Monongahela  Naviga- 
tion Company  v.  United  States,  148  U.  S.  312.  The 
Monongahela  Navigation  Company,  under  acts  of  the 
Pennsylvania  Legislature  and  by  consent  of  Congress, 
had  erected  dams  in  the  Monongahela  river  and  ren- 
dered it  navigable  to  a  point  at  or  near  the  West  Vir- 
ginia line.  The  Congress  of  the  United  States  passed 
an  act  to  improve  the  navigation  of  this  river,  and  to 
this  end  negotiations  were  to  be  made  to  purchase  the 
dams,  and  if  such  negotiations  were  unsuccessful,  then 
the  secretary  of  war  was  to  begin  condemnation  pro- 
ceedings in  the  United  States  Circuit  Court  in  Pennsyl- 
vania, either  party  having  the  right  to  writ  of  error 
or  appeal.     The  Act  of  Congress  had  this  provision: 

''Provided,  that  in  estimating  the  sum  to  be  paid 
by  the  United  States,  the  franchise  of  said  corporation 
to  collect  tolls  shall  not  be  considered  or  estimated." 
[Vol.  25,  U.  S.  Statutes  at  Large,  400-411,  Chap.  860.] 

It  does  seem  that  the  court  mistook  the  meaning 
of  Congress.  That  a  franchise  is  property  can  not  be 
denied.  But  this  franchise  was  wholly  unnecessary^  to 
the  United  States.  Congress  evinced  no  desire  to  con- 
demn this  franchise.  The  United  States  could  improve 
this  river,  under  the  Constitution  of  the  United  States, 
without  getting  the  right  to  do  so  from  this  corpora- 
tion. If  the  negotiations  had  been  successful  and  the 
United  States  had  bought  this  dam  No.  7,  is  it  possible 
that  the  United  States  must  go  further  and  buy  this 
franchise  before  the  dam  No.  7  can  be  used  by  the  pub- 
lic under  the  United  States?     But  as  construed  by  the 


Chap.  7]  Power  of  Government.  159 

Supreme  Court  of  tlie  United  States  it  was  necessary 
to  condemn  and  take  tliis  franchise.  The  United  States 
could  not  do  without  it. 

Speaking  of  "just  compensation,"  and  remarking 
that  "just"  renders  the  matter  emphatic  and  that  "just 
compensation"  is  to  be  a  full  equivalent  for  the  prop- 
erty taken,  the  court  say  (page  326) : 

"This  excludes  the  taking  into  account,  as  an  ele- 
ment in  the  compensation,  any  supposed  benefit  that 
the  owner  may  receive  in  common  with  all  from  the 
])ublic  uses  to  which  his  private  property  is  appropri- 
ated, and  leaves  it  to  stand  as  a  declaration  that  no 
private  property  shall  be  appropriated  to  public  uses 
unless  a  full  and  exact  equivalent  for  it  be  returned  to 
the  owner. 

"TVe  do  not  refer  in  this  to  the  case  where  only  a 
portion  of  a  tract  is  taken,  or  express  any  opinion  on 
the  vexed  question  as  to  the  extent  to  which  the  bene- 
fits or  injuries  to  the  portion  not  taken  may  be  brought 
into  consideration." 

After  remarking  that  this  question  may  come  up 
in  the  future  trial  of  this  case,  the  court  continuing  say : 

"By  this  legislation  Congi-ess  seems  to  have  as- 
sumed the  right  to  determine  what  shall  be  the  measure 
of  compensation.  But  this  is  a  judicial  and  not  a  leg- 
islative question.  The  Legislature  may  determine  what 
private  property  is  needed  for  public  purposes  [Did  the 
government  need  the  franchise'?]— that  is  a  question  of 
a  political  and  legislative  character;  but  when  the  tak- 
ing has  be«n  ordered,  then  the  question  of  compensa- 
tion is  judicial.  It  does  not  rest  with  the  public  tak- 
ing the  property,  through  Congress  or  the  Legislature, 
its  representative,  to  say  what  compensation  shall  be 
paid  or  even  what  shall  be  the  rule  of  compensation. 
The  Constitution  has  declared  that  just  compensation 


160  Law  of  Local  Taxation.  [Chap.  7 

shall  be  paid  and  the  ascertaiument  of  that  is  a  judic- 
ial inquiry."  In  Charles  River  Bridge  v.  Warren 
Bridge,  11  Pet.  420,  at  571,  Mr.  Justice  McLean,  in  his 
opinion,  referring  to  a  provision  for  compensation 
found  in  the  charter  of  the  Warren  Bridge,  uses  this 
language : 

''They  (the  Legislature)  provide  that  the  new  com- 
pany shall  pay  annually  to  the  college,  in  behalf  of  the 
old  one,  one  hundred  pounds.  By  this  provision  it  ap- 
pears that  the  Legislature  has  undertaken  to  do  what 
a  jury  of  the  country  only  could  constitutionally  do; 
assess  the  amount  of  compensation  to  which  the  com- 
plainants are  entitled."  See,  also,  the  following  au- 
thorities; Commonivealth  v.  Pittsburgh  d  Connells- 
ville  Railroad,  58  Penn.  St.  26-50;  Penn.  Railroad  v. 
Bait.  S  Ohio  Railroad,  60  Maryland  263;  Isom  v.  Mis- 
sissippi  Central  Railroad,  36  Mississippi  300. 

In  the  last  of  these  cases,  and  on  page  315,  will  be 
found  these  observations  of  the  court : 

' '  The  right  of  the  Legislature  of  the  State,  by  law, 
to  apply  the  property  of  the  citizen  to  public  use,  and 
then  to  constitute  itself  the  judge  in  its  own  case  to  de- 
termine what  is  the  just  compensation  it  ought  to  pay 
therefor,  or  how  much  benefit  it  has  conferred  upon  the 
citizen  by  thus  taking  his  property  without  his  consent, 
or  to  extinguish  any  part  of  such  compensation  by  pros- 
pective conjectural  advantage,  or  in  any  manner  to  in- 
terfere with  the  just  powers  and  province  of  courts  and 
juries  in  administering  right  and  justice,  can  not  for  a 
moment  be  admitted  or  tolerated  under  our  Constitu- 
tion. If  anj^thing  can  be  clear  and  undeniable,  upon 
principles  of  natural  justice  or  constitutional  law,  it 
seems  that  this  must  be  so." 

"We  are  not  therefore  concluded  by  the  declara- 
tion in  the  act  that  the  franchise  to  collect  tolls  is  not 
to  be  considered  in  estimating  the  sum  to  be  paid  for 
the  property." 


Chap.  7]  Power  of  Government.  161 

Mr.  Welty,  in  his  work  on  Assessments,  page  37, 
section  25,  says : 

''Sec.  25.  Assessors  act  both  Judicially  and  Min- 
isterially.—In  the  exercise  of  the  functions  and  in  the 
discliarge  of  the  duties  of  his  office,  an  assessor  acts 
both  judicially  and  ministerially;  some  of  his  acts  are 
judicial  and  some  are  ministerial.  When  it  becomes 
necessary  to  determine  a  question  of  law  or  fact,  the  act 
is  judicial.  It  may  safely  be  affirmed  that  in  no  in- 
stance does  an  assessor  perform  all  the  acts  necessary 
to  perfect  the  assessment  of  a  single  person  or  item  of 
property  without  the  exercise  of  acts  'Eminently  ju- 
dicial in  their  nature.'  He  is  clothed  with  power  to 
administer  oaths;  to  receive  both  written  and  oral 
statements  touching  the  matters  his  office  gives  him  ju- 
risdiction to  inquire  about,  and  to  determine  the  facts 
necessarily  entering  into  an  assessment;  such  as  the 
liability  of  persons  to  assessment  and  taxation  within 
his  district;  the  property  owned  by  them  and  the  por- 
tion thereof  subject  to  taxation;  the  portion  thereof, 
if  any,  exempt  from  taxation  and  the  value  thereof. 
These  acts  are  spoken  of  in  all  the  cases  as  judicial  in 
their  nature.  There  are  other  acts  which  are  merely 
ministerial." 

In  note  1,  page  38,  the  author  quotes  from  Weaver 
V.  Devendorf^  3  Denio  117,  wherein  the  court  say:  "In 
some  particulars  the  duty  of  the  assessors  is  undoubt- 
edly ministerial ;  but  in  fixing  the  value  of  tangible 
property  the  power  exercised  is  in  its  nature  purely  ju- 
dicial." If  it  were  true  that  the  power  to  ascertain 
the  value  of  property  was  legislative  in  its  nature,  then 
the  Constitution  must  be  changed.  The  "just  compen- 
sation" of  the  Constitution  contemplates  a  juiy  or  com- 
missioners and  a  court  into  which  money  may  be  paid, 
evidently  a  judicial  proceeding.  When  the  whole  land 
is  taken,  then  the  value  of  the  land  is  the  "just  com- 

11 


162  Law  of  Locu:.  Taxation.  [Chap.  7 

pensatioD. "  Cau  the  legislative  power  determine  that 
value  I  Can  the  Legislature  do  what  the  Constitution 
requires  a  juiy  to  do!  If  the  Legislature  may  in  this 
one  instance  do  what  the  Constitution  requires  the 
court  and  jur^y  to  do,  why  may  not  the  Legislature  it- 
self do  all  the  things  that  the  Constitution  requires  the 
court  and  jury  to  do  I 

The  Legislature  is  not  only  without  power  to  deter- 
mine the  value  of  real  estate  before  a  public  improve- 
ment is  made  in  its  vicinity  or  after  it  is  made  and  for 
that  reason  can  not  determine  benefits  or  damages,  but 
the  legislative  power  can  not  determine  the  number  of 
articles  of  personal  property  belonging  to  any  one.  Not 
only  is  the  legislative  power  without  authority  to  fix 
the  value  for  taxation  of  farmer  Smith's  cow  or  his 
mule  or  his  horse  or  his  wagon  or  his  harness,  but  the 
legislative  power  can  not  determine  how  many  mules, 
horses  or  cows  farmer  Smith  owns.  The  legislative 
power  can  not  enter  farmer  Smith's  hen  roost  and 
count  and  value  his  chickens  for  taxation  and  bind 
farmer  Smith  hj  the  count  and  value.  The  legislative 
power  can  not  enter  farmer  Smith's  horse  lot  or  sta- 
bles and  count  and  value  his  cows,  his  mules  or  his 
horses  and  bind  him  by  such  count  and  value.  The 
legislative  power  can  not  enter  the  merchant's  store 
and  measure  the  number  of  yards  of  ribbon  and  of 
calico  in  the  store  or  weigh  his  sugar  and  coffee  and 
salt  and  bind  such  merchant  by  such  weight  or  meas- 
urement for  purposes  of  taxation. 

If  the  legislative  power  maj^  determine  that  far- 
mer Smith  has  two  mules,  when  in  fact  he  has  only  one, 
and  bind  farmer  Smith  by  such  count,  then  such  legis- 
lative power  may  determine  that  farmer  Smith  has  one 
hundred  mules  when  in  fact  he  has  none,  and  farmer 
Smith  will  be  without  remedy  in  the  courts.  If  the  leg- 
islative power  refer  the  matter  of  value  to  a  judicial 


Chap.  7  j  Power  OF  Government.  103 

office  on  notice  and  Jiearing,  and  only  determine  num- 
ber, it  will  be  just  as  difficult  for  the  assessor  acting 
judicially  to  determine  the  value  of  non-existent  mules 
as  to  determine  the  value  of  non-existent  benefits.  If 
the  legislative  power  can  not  detennine  that  farmer 
Smith  has  for  taxation  one  thousand  dollars  worth  of 
nmles,  that  legislative  powder  can  not  determine  that  he 
has  for  taxation  one  thousand  dollars  worth  of  bene- 
fits. If  this  be  not  true  then  the  legislative  power  may 
for  purposes  of  taxation  detennine  that  each  farmer 
has  two  hundred  mules  worth  $250  each  for  taxation, 
and  enforce  the  collection  of  the  tax,  and  the  farmer 
will  have  no  remedy  in  the  courts  to  show  the  error  in 
value  or  number.  All  such  acts  although  enacted  in 
the  form  of  laws,  are  not  laws ;  they  are  not  ivithin  the 
bounds  of  Icfiislative  poiver.  The  acts  are  those  of  the 
trespasser,  the  robber,  the  thief.  They  are  not  acts  of 
legislation, 

**It  may  well  be  doubted  whether  the  nature  of 
society  and  of  government  does  not  prescribe  some 
limits  to  the  legislative  power,  and  if  any  be  prescribed, 
where  are  they  to  be  found,  if  the  property  of  an  in- 
dividual, fairly  and  honestly  acquired,  may  be  seized 
without  com'iiensation.  To  the  Legislature  all  legisla- 
tive power  is  granted;  but  the  question,  whether  the 
act  of  transferring  the  property  of  an  individual  to 
the  ])ublic,  be  in  the  nature  of  legislative  power,  is  well 
woi-thy  of  serious  reflection.  It  is  the  peculiar  prov- 
ince of  the  Legislature  to  prescribe  general  rules  for 
the  government  of  society;  the  application  of  these 
rules  to  individuals  in  sociefif  nould  seem  to  he  the  duty 
of  other  departments."  [Fletcher  u.  Peck,  6  Cranch 
87,  at  135-6,  ]\rarshall,  C.  J.] 

According  to  the  decision  in  Monongahela  Navi- 
gation Co.  V.  United  States,  148  U.  S.  312,  the  legisla- 
tive power  can  not  determine  *Must  com]iensation"  for 


164  Law  of  Local  Taxation.  [Cliap.  7 

taking  private  property  for  public  use ;  the  question  is 
judicial.  We  have  a  constitutional  provision  that  pri- 
vate property  shall  not  be  taken  or  damaged  for  pub- 
lic use  without  ''just  compensation."  The  question 
what  is  just  compensation  for  damaging  private  prop- 
erty for  public  use,  is  just  as  much  of  a  judicial  ques- 
tion as  what  is  just  compensation  for  taking  private 
property  for  public  use.  If  the  Legislature  cannot  pre- 
scribe niles  to  the  courts  by  which  to  determine  just 
compensation  for  taking  private  property  for  public 
use,  then  the  Legislature  cannot  prescribe  rules  by 
which  to  determine  just  compensation  for  damaging 
private  property  for  public  use.  The  question  ought 
to  be  judicial  in  both  cases  or  neither.  Monongahela 
Navigation  Company  v.  United  States,  determines  an- 
other question.  The  act  of  Congress  provides  that 
nothing  shall  be  allowed  for  the  franchise.  This  is 
equivalent  to  saying  the  United  States  do  not  take  the 
franchise.  The  United  States  have  no  possible  use  for 
it.  The  United  States  can  build  those  dams  and  oth- 
ers and  let  the  commerce  of  the  world  pass  over  them 
without  this  franchise— without  getting  any  right  from 
the  Monongahela  Navigation  Company.  Neither  the 
State  of  Pennsylvania  nor  the  Congress  of  the  United 
States  could  do  any  act  or  make  any  grant  that  would 
impair  the  power  of  Congress  over  commerce.  Here  is 
a  question  whether  the  United  States  took  the  franchise 
or  did  not  take  it.  Congress  evidently  had  the  idea 
that  the  United  States  had  no  use  for  the  franchise. 
There  was  no  necessity  for  taking  it  as  Congress  de- 
termined (perhaps  very  properly,  too,  as  the  Legisla- 
ture determines  the  necessity  to  take  and  what  to  take). 
Was  the  franchise  taken!  I  make  no  assertion  here  one 
way  or  another,  either  whether  it  was  taken  or  was  not 
taken,  but  what  sort  of  question  is  to  l^e  determined? 
Here  Congress  did  not  authorize  taking  the  franchise, 


Chap.  7]  Power  of  Government.  165 

certainly  not  in  tonns.  Congress  provided  for  taking 
these  dams  and  paying  for  them,  and  farther  provided 
that  the  franchise  should  not  be  paid  for  as  they  did  not 
need  it,  and  did  not  take  it  or  pro])ose  to  take  it. 

Could  Congress  do  or  authorize  to  be  done  what 
was  here  done,  and  declare  that  thereby  the  franchise 
was  not  taken  and  by  such  determination  conclude  the 
owner  of  the  franchise  so  that  the  courts  could  not  in- 
quire into  the  question  ?  The  United  States  were  held 
to  have  taken  this  franchise,  although  they  condemned 
the  locks  only.  Congress  could  not  declare  that  the 
franchise  was  not  taken  and  by  such  detennination  con- 
clude the  owner  and  the  courts  from  inquiring  into  the 
question  whether  it  was  taken  or  not.  The  Legislature 
make  certain  legislative  enactments.  Whether  by  these 
enactments  private  property  is  or  is  not  taken  is  a  ju- 
dicial question.  The  Legislature  cannot  determine  that 
their  acts  are  not  a  taking  and  conclude  the  property- 
owner  by  such  legislative  determination  so  that  the 
courts  cannot  inquire  into  the  matter.  Congress  de- 
clared that  they  did  not  take  this  franchise ;  the  courts 
declared  that  they  did  take  it.  The  courts  were  not 
bound  by  the  legislative  declaration  that  the  property 
was  not  taken.  What  is  a  taking  within  the  meaning 
of  the  Constitution  is  a  judicial  question  for  the  courts. 
The  legislative  power,  the  power  that  takes  land  for 
public  use  determines  the  necessity  for  taking  and  the 
amount,  and  in  general  this  legislative  detemiination  to 
take  and  the  amount  cannot  be  reviewed  by  the  courts. 

After  there  is  a  legislative  determination  to  take 
private  property  for  public  use,  then  there  must  be  a 
taking;  and  then  the  question  may  occur,  Wliat  is  a 
taking?  A  block  in  a  city,  proposed  to  be  taken  for  a 
park,  may  be  full  of  residences  of  magnificent  pro]X)r- 
tions,  tiled  floors,  hand-carved  mahogany  mantels,  and 
other  elegant  appurtenances  of  the  home.     These  ele- 


1^6  Law  of  Local  Taxation.  [Cliap.  7 

gant  houses  are  a  damage  to  a  park.  They  are  of  no 
possible  use  to  the  public  for  park  purposes.  They  are 
a  positive  damage.  Can  the  legislative  power  condemn 
the  land  alone  and  pay  for  the  land  alone  and  let  the 
owners  keep  the  houses!  The  legislative  authority 
gay  these  houses  are  not  necessary  for  a  park,  and  their 
determination  is  in  most  cases  conclusive  on  the  ques- 
tion what  to  take  and  what  is  necessary  to  be  taken.  In 
the  condemnation  proceeding  the  owners  ask  "just  com- 
pensation" for  these  slate  roofs,  these  tiled  floors,  these 
mahogany  mantels,  these  elegantly  hand-carved  dooi's 
and  splendidly  cemented  cellars.  We  do  not  want  your 
mahogany  mantels,  your  slate  roofs,  your  tiled  floors. 
We  decide  these  are  not  necessary  for  a  park  and  we 
are  not  authorized  to  take  any  property  unless  it  is 
necessary.  The  legislative  power  declares  it  did  not 
take  or  authorize  to  be  taken  these  carved  mahogany 
mantels,  mosaics,  tiled  floors,  slate  roofs  and  rat-proof 
cellars.  How  can  you  malce  a  park  out  of  a  rat-proof 
cellar?  The  legislative  power  declares  it  did  not  take 
this  property.  Is  that  legislative  determination  con- 
clusive on  the  courts  ?  Here  are  certain  acts  done.  Do 
these  acts  constitute  a  taking  within  the  meaning  of 
that  provision  of  the  Constitution  that  private  prop- 
erty shall  not  be  taken  for  public  use  \\nthout  just  com- 
pensation! A\liat  power  shall  determine  this  question? 
The  legislative  power  ought  not  to  be  allowed  to 
decide  its  own  case  in  its  own  favor  and  exclude  any 
inquiry  on  the  part  of  the  courts.  The  thief  is  ar- 
raigned in  court  for  stealing  and  he  pleads  not  guilty; 
he  says  he  did  not  steal  and  his  declaration  to  that  ef- 
fect, his  decision  on  the  fact,  is  conclusive  on  the  courts. 
This  is  the  legitimate  consequence  of  this  train  of  rea- 
soning. The  judicial  power  must  determine  just  com- 
pensation for  private  property  taken  or  damaged  for 
jmblic  use.      The  judicial  power  miust  determine  the 


Chap.  7]  Power  OF  Government.  167 

whole  matter.  What  is  a  taking;  what  is  a  daimg-ing; 
what  is  just  coin])ensation?  These  are  all  judicial  <iues- 
tions. 

If  the  Legislature  decide  any  one  of  the  above 
questions,  then  there  is  nothing  left  for  the  eoui-ts  to  act 
on.  According  to  the  ])rovisions  of  the  Constitution, 
just  compensation  for  damaging  or  taking  shall  be  as- 
certained by  a  jury  or  commissioners.  If  the  legisla- 
tive i)Ower  decide  what  is  just  compensation  and  bind 
the  courts  by  such  decision,  then  there  is  nothing  for 
court,  jury  or  commissioners  to  do.  Tf  the  legislative 
power  decide  that  there  is  no  taking,  then  there  is 
nothing  for  court,  jury  or  commissioners  to  do.  Tf  the 
legislative  ]wwer  decide  there  is  no  damaging,  then 
there  is  nothing  for  this  court,  jury  or  commissioners 
to  determine.  The  legislative  power  cannot  say  we  did 
not  take  the  franchise  and  bind  the  owner  so  the  mat- 
ter could  not  be  inquired  into  in  the  courts.  The  leg- 
islative power  could  not  say  we  did  not  take  the  houses 
in  the  park  district  and  thereby  bind  the  owners.  The 
whole  section  in  the  Constitution  is  a  ]irohibition. 

A  corjioration  is  charged  with  taking  land  for  pub- 
lic use.  The  corporation  decides  the  case  in  its  own 
favor  by  its  legislative  declaration  that  it  did  not  take. 
The  legislative  power  takes  or  damages  property  and 
denies  it  took  or  damlaged  and  its  legislative  denial  is 
conclusive.  The  question  as  to  what  power  determines 
benefits  was  discussed  in  Kansas  Cifij  v.  Baird,  98  Mo. 
215,  at  220-1.  The  verdict  embraced  all  the  property 
in  the  district.  Several  pieces  of  property  were  marked 
thus  on  the  verdict  opposite  the  description  of  the 
property,  ''Benefit  nothing."  Say  the  court,  page  220, 
bottom : 

"The  argument  is,  that  the  finding  of  the  council 
is  a  judicial  determination  that  all  property  within  the 
defined  limits  is  benefited  and  that  the  jury  has  nothing 


168  Law  of  Local  Taxation.  [Chap.  7 

to  do  but  apportion  the  benefits."  The  court  observe : 
"The  council  does  not  nor  can  it  assess  damages  or  ben- 
efits.   These  questions  are  left  to  the  jury." 

The  case  was  a  condemnation  proceeding.  The 
"damages"  spoken  of  were  the  just  compensa- 
tion of  the  Constitution  for  property  taken  and  the 
benefits  are  the  special,  peculiar,  exceptive  benefits  nec- 
essary for  this  kind  of  taxation  within  the  benefit  dis- 
trict defined  by  the  council.  "And  the  jury  has  no  right 
to  say  in  its  verdict  that  property  within  the  district 
prescribed  by  the  ordinance  is  not  benefited  at  all" 
(page  217  in  brief  of  counsel).  Court  and  jury  found 
there  were  no  benefits  when  the  council  found  there 
were.  What  was  a  benefit  and  how  much,  were  ques- 
tions for  court  and  jury,  certainly  not  legislative  ques- 
tions. If  the  legislative  power  cannot  determine  bene- 
fits in  a  condemnation  proceeding  or  in  a  proceeding 
to  ascertain  just  compensation  for  damaging  private 
property  for  public  use  (and  when  you  determine 
benefits  you  exercise  the  tax-power),  how  can  that  leg- 
islative power  determine  the  fact  and  amount  of  bene- 
fits in  the  exercise  of  the  same  tax  power  to  pay  for 
paving  a  street!  The  legislative  power  cannot,  under 
its  taxing  power,  determine  benefits  for  grading  a 
street ;  how  can  the  Legislature  in  the  exercise  of  the 
same  tax  power  determine  the  fact  and  amount  of  ben- 
efits for  paving?  You  grade  a  street  and  leave  the 
property  high  up  in  the  air,  inaccessible  to  the  owner; 
what  good  does  a  sidewalk  to  that  property  do  that 
owner?  How  can  the  Legislature  determine  the  fact 
and  amount  of  benefit  I  They  do  not  and  cannot  know 
the  cost  of  a  work  which  must  be  let  to  the  lowest  bid- 
der. How  can  they  determine  that  the  benefit  will  equal 
the  cost  when  without  omniscience  they  cannot  deter- 
mine cost?  The  charters  do  not  endow  them  with  om- 
niscience.   This  is  about  the  only  power  not  conferred. 


CHAPTEK  8. 

CHANGES  IN   JUDICIAL  RULINGS. 

We  come  now  to  a  change  in  the  judicial  rulings 
of  the  Supreme  Court  of  Missouri,  and  other  states 
also.  That  change  is  from  the  old  doctrine  as  an- 
nounced in  the  earlier  decisions  in  favor  of  individual 
right,  to  one  directly  the  opposite. 

The  first  case  of  importance  in  which  this  change 
is  noted  is  that  of  Keith  v.  Bingham,  100  Mo.  300  (A.  D. 
1889).  The  suit  was  on  a  tax-bill  for  grading  the  street 
on  which  the  lot  abutted,  and  against  which  it  was 
charged  to  be  a  lien.  The  tax-bill  sued  on  was  issued 
July  26, 1883,  and  was  therefore  under  the  Constitution 
of  Missouri  of  1875.  The  ordinance  for  the  work  was 
approved  in  October,  1882,  seven  years  after  the  adop- 
tion of  the  Constitution  of  1875  and  nine  years  after 
the  Supreme  Court  decided  that  "Local  assessments 
are  constitutional  only  when  imposed  to  pay  for  local 
improvements  conferring  special  benefits"  (54  Mo. 
474). 

In  Keith  v.  Bingham  the  grading  was  a  damage 
forbidden  by  the  Constitution,  and  yet  the  tax  was  con- 
stitutional as  against  the  very  person  and  property  in- 
tended to  be  i)rotected.  In  rendering  the  opinion  that 
court,  on  page  306,  says : 

''It  is  claimed  by  defendant  that  the  tax-bills  in 
suit  were  issued  in  violation  of  that  section  of  the  Con- 
stitution which  declares  'That  private  property  shall 
not  be  taken  or  damaged  for  public  use  without  just 
.compensation.  Such  coinpensation  shall  be  ascertained 
by  a  jury  or  board  of  commissioners  of  not  less  than 
three  freeholders,  in  such  manner  as  may  be  prescribed 

(169) 


170  Law  of  Local  Taxation.  [Chap.  8 

by  law;  and  until  the  same  shall  be  paid  to  the  owner 
or  into  court  for  the  owner  the  property  shall  not  be 
disturbed.'      [Const.  1875,  art.  2,  sec.  21.] 

"Looking  at  this  defense  from  the  most  favorable 
standpoint  it  is  evident  it  is  untenable.  The  section  of 
the  Constitution  just  quoted  refers  to,  and  is  intended 
to  regulate  the  exercise  of  the  right  of  eminent  domain, 
whereas  special  assessments  for  local  improvements, 
such  as  the  tax-bills  before  us,  are  referable  to  and  sus- 
tainable under  the  taxing  power.  This  distinction  is 
well  recognized  here  and  elsewhere  in  the  United 
States.  [Garrett  v.  St.  Louis  (A.  D.  1857),  25  Mo.  505 ; 
Lewis  on  Eminent  Domain,  sec.  5.]  " 

In  the  Constitution  of  Missouri,  framed  ''at  the 
town  of  St.  Louis  on  the  nineteenth  day  of  July,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  twen- 
ty, and  of  the  independence  of  the  United  States  of 
America  the  forty-fifth,"  occurs  in  article  13,  subdivis- 
ion 5,  this  language.  ''And  that  no  private  property 
ought  to  be  taken  or  applied  to  public  use  without  just 
compensation." 

In  St.  Louis  V.  Peter  Gurno,  12  Mo.  414,  an  action 
on  the  case  for  damages  to  Mr.  Gurno 's  property  in 
St.  Louis  by  reason  of  grading  and  paving  the  street  in 
front  of  his  property,  the  report  says:  "The  jury 
found  the  defendant  guilty  and  assessed  the  damages 
at  $1,675"  (the  City  of  St.  Louis  being  defendant  be- 
low, but  plaintiff  in  error  above).  This  damage  ap- 
pears to  have  been  done  in  1843  and  the  case  deter- 
mined in  the  Supreme  Court  of  Missouri  in  1849.  Here 
were  damages  to  the  amount  found.  And  yet  plain- 
tiff could  not  recover.  Two  years  later  Taylor  v.  St. 
Louis  was  decided  by  the  same  court  (14  Mo.  20).  No 
damages  were  found  by  court  or  jury.  The  court  in- 
structed the  jury  that  "Any  injury  to  adjoining  prop- 
erty caused  by  grading  the  same  in  a  skillful  and  prop- 


Chap.  8]        Changes  in  Judicial  Rulings.  171 

er  inaniior,  is  not  an  appropriation  of  i)rivate  property 
for  which  the  owner  of  said  adjoining  property  can  re- 
cover in  an  action  against  the  city"  (p.  21-22). 
Say  the  court,  p.  24 : 

'*To  grade  a  street  or  alley  already  dedicated  to 
public  use,  is  not  an  exercise  of  eminent  domain  so  as 
to  require  compensation.  It  is  not  appropriating  pri- 
vate property  to  public  use,  hut  simply  an  exercise  of 
power  over  uhat  is  already  public  property.  The  dam- 
age resulting  by  causing-  the  i)laintiffs  to  rebuild  or 
prop  up  their  falling  walls  is  consequential  and  .  .  . 
the  city  is  not  responsible."  But  in  all  these  cases  the 
property  was  damaged. 

The  constitutional  provision  now  is  that  private 
property  shall  not  be  taken  or  damaged. 

"The  constitutional  provision  quoted  is  intended 
to  regulate  the  exercise  of  the  right  of  eminent  do- 
main," say  the  court,  while  the  evident  idea  intended 
to  be  conveyed  is  that  it  is  limited — this  constitutional 
provision  is  limited  to  taking  private  property  for  pub- 
lic use  by  the  exercise  of  the  right  of  eminent  domain 
or  damaging  private  property  for  public  use  in  the  ex- 
ercise of  the  right  of  eminent  domain;  in  either  case 
there  must  be  just  compensation. 

Private  property  may  be  taken  for  public  use,  or 
it  mjay  be  damaged  for  public  use  in  the  exercise  of 
any  governmental  power,  either  legislative,  executive 
or  judicial,  other  than  that  of  eminent  domain,  and  the 
owner  of  the  ]u-o]ierty  so  taken  or  damaged  is  remedi- 
less so  far  as  getting  "just  compensation"  for  either 
taking  his  property  or  damaging  it.  The  constitutional 
provision  quoted  is  certainly  intended  to  regulate  the 
exercise  of  the  right  of  eminent  domain,  but  that  is  not 
its  only  purpose. 

Here  a  street  is  graded  and  abutting  property  is 
damaged.  When  the  city  passed  the  ordinance  to  grade 
and  graded  this  street,  it  did  not  exercise  the  right  of 


172  Law  of  Local  Taxation.  [Chap.  8 

eminent  domain  as  then  generally  understood  by 
Bench  and  Bar. 

It  is  said  that  ''special  assessments  for  local  im- 
provements are  referable  to  and  sustainable  under  the 
taxing  power"  (if  sustainable  at  all). 

In  Wells  V.  Weston,  22  Mo.  384,  it  was  the  taxing 
power  that  took  Wells'  land  contrary  to  or  in  violation 
of  the  Constitution. 

In  St.  Charles  v.  Nolle,  51  Mo.  124,  it  was  the  tax- 
ing power  that  took  private  property  for  private  use 
under  the  form  of  an  exaction  of  a  license  tax. 

In  Toivn  of  Cameron  v.  Stephenson,  69  Mo.  372,  at 
378,  the  taxing  power  made  the  exaction  and  the  Con- 
stitution rendered  the  act  void  as  taking  private  prop- 
erty for  private  use. 

In  City  of  St.  Louis  to  use  v.  Allen,  53  Mo.  44,  the 
tax-law  was  constitutionally  invalid  as  taking  private 
property  for  public  use  without  just  comipensation. 

In  Higgins  v.  Ausmus,  77  Mo.  351,  Mr.  Higgins' 
stoves  were  taken  for  a  local  sidewalk  tax.  The  tax-law 
was  invalid  as  taking  his  j^rivate  property  (his  stoves) 
for  public  use  without  just  compensation. 

In  Pleasant  Hill  v.  Dasher,  120  Mo.  675,  the  local 
tax-law  was  held  invalid  as  taking  private  property  for 
public  use  without  just  compensation. 

"If  the  state  government  possessed  no  authority 
over  private  property  except  that  of  taking  it  for  the 
public  use  upon  rendering  the  owner  a  just  compensa- 
tion, it  would  seem  that,  under  this  provision,  the  own- 
er would  be  entitled  to  the  full  money  value  of  his  prop- 
erty without  any  deduction"  (25  Mo.  loc.  cit.  263). 

"This  law  (road  law  of  1845)  is,  indeed,  nothing 
more  in  effect  than  the  exercise  of  both  powers  of  gov- 
ernment in  the  same  breath— that  of  taking  the  land  by 
the  right  of  eminent  domain,  and  of  requiring,  under 
the  taxing  power,  the  adjacent  landowners  to  contrib- 


Chap.  8]       Changes  in  Judicial  Rulings.  173 

ute  to  the  cost  of  it  in  ])roi)ortion  to  the  benefit  each 
will  derive  from  the  road"  (25  ]\[o.  loc.  cit.  264). 

"It  is  evident  that  the  advantages  or  benefits  must 
have  some  limits"  (25  Mo.  loc.  cit.  512).  These  ))ene- 
fits  or  advantages  are  limited  by  the  Constitution  to 
such  as  are  special,  peculiar,  exceptive,  not  enjoyed  in 
common  with  other  property  in  the  vicinity. 

Although  the  last  two  cases  involved  the  power  of 
eminent  domain  and  the  tax-power,  yet  it  was  the  tax 
power  that  took  private  property  for  public  use  with- 
out just  compensation. 

Continuing  in  Keith  v.  Bingham,  the  court,  at  page 
306,  say: 

"If  the  taxing  power  has  been  called  into  play  in 
the  mode  required  by  law  [We  suppose  the  court  refer 
to  a  law  in  consonance  with  the  Constitution]  for 
the  purpose  of  paying  for  a  local  improvement, 
such  as  paving  or  grading  a  street,  it  is  no  defense  to 
a  bill  issued  therefor  to  say,  as  is  said  here,  that  the 
street  or  the  improvement  damaged  and  did  not  benefit 
the  property,  though  if  such  were  the  fact,  the  party 
injured  might  have  his  action  (on  a  proper  showing) 
under  the  Constitution  for  such  injury.  [Householder 
V.  City  of  Kansas,  83  Mo.  488.]  If  the  city  had  invoked 
the  power  of  eminent  domain  unlawfully  in  the  premi- 
ses [But  did  the  city  invoke  the  power  of  eminent  do- 
main when  it  graded  May  street  in  Kansas  City?]  it 
could  be  held  accountable  therefor,  but  that  would  not 
interfere  with  the  special  tax-bill  for  an  improvement 
regularly  niade  under  the  taxing  power.  The  right  of 
action  which  a  ])erson  might  thus  have  against  the  mu- 
nicipality would  constitute  no  just  defense  to  the  claim 
of  the  contractor  who  had  made  the  improvement  and 
to  whom,  under  the  law  in  question  here,  the  tax  as- 
sessment is  payable." 

The  city  did  not  grade  this  street  (regularly  or  ir- 


174  Law  of  Local  Taxation.  [Chap.  8 

regularly)  under  the  tax  power.  The  court  seem  to  be  of 
the  opinion  that  there  may  be  an  irregular  exercise  of 
the  power  of  eminent  domain  when  property  is  taken 
or  damaged  without  payment  in  advance.  The  owner 
ought  to  be  paid  for  his  land,  and  payment  should  be 
made  in  advance.  The  writer  is  not  disposed  to  deny 
that  the  city  acts  irregularly  when  it  takes  or  damages 
private  property  for  public  use  without  payment  in  ad- 
vance. The  writer  is  not  disposed  to  deny  that  the  con- 
duct of  the  horse  thief  is  irregular.  The  court  ought  to 
recollect  that  the  chief  difficulty  with  the  horse  thief 
is  his  failure  to  pay  the  owner  for  the  horse  he  stole 
from  him.  The  court  in  quoting  the  Constitution  of 
Missouri  inadvertently  omitted  a  portion  of  the  provis- 
ion in  section  21  of  art.  2:  ''And  until  the  same  [just 
compensation]  shall  be  paid  to  the  owner  or  into  court 
for  the  owner  the  property  shall  not  be  disturbed;"  the 
part  omitted  is,  "or  the  proprietary  rights  of  the  owner 
divested." 

The  city  charter  provided  for  these  tax-bills  for 
grading  streets ;  they  were  made  liens  on  the  abutting 
lots.  In  the  event  of  failure  to  pay  the  tax-bills,  the 
holder  may  sue  the  landowner,  and  under  this  decision 
it  is  no  defense  that  the  "improvement  damaged  and 
did  not  benefit  the  property. ' '  Then  a  judgment  is  ren- 
dered against  the  owner  (not  in  personam)  for  the  sale 
of  the  land  (damaged  and  not  benefited)  to  pay  the  cost 
of  doing  the  work  which  damaged  and  did  not  benefit  it. 
An  execution  is  provided  for  by  this  statute  and  also 
a  sheriff's  deed  conveying  to  the  purchaser  the  title  of 
the  parties  to  the  suit. 

Are  the  proprietary  rights  of  the  owner  therein 
then  divested  I  The  grading  of  a  street  here  "damaged 
and  did  not  benefit"  the  defendant's  lot.  Grading  a 
street  is  not  exercising  the  power  of  eminent  domain. 
Grading  a  street  is  not  an  exercise  of  the  power  of  tax- 


Chap.  8]  CnAN(;i:s  I.N   JlDKIAL  KULINGS.  175 

ation.  The  iiiiprovemeiit  "damaged  and  did  not  bene- 
fit the  property"  taxed.  This  was  the  defense  de- 
murred to.  The  demurrer  admits  that  'Hhe  improve- 
ment damaged  and  did  not  benefit"  the  property.  The 
city  charter  and  ordinance  required  a  contract  to  be 
entered  into  for  doing  this  grading,  to  be  let  to  the  low- 
est and  best  bidder.  Here,  then,  is  a  contract  to  make 
an  improvement  (grading  a  street)  which  damaged  and 
did  not  benefit  defendant's  land.  No  tax-bill  is  valid 
or  of  any  force  without  this  contract  so  provided  for 
by  this  statute  (city  charter).  Here,  then,  is  this  con- 
tract to  grade  this  street  (an  improvement  which  dam- 
ages and  does  not  benefit  this  property)  and  thereby 
damage  defendant's  pro])erty— a  contract  to  do  that 
which  the  Constitution  says  shall  not  be  done.  The  city 
enters  into  a  contract  to  violate  the  Constitution.  The 
contractor  makes  his  agreement  to  violate  the  Consti- 
tution. 

This  Constitution  was  thought  to  mean  that  it  pre- 
vented, first,  taking  private  property,  or  second,  dam- 
aging private  property  for  public  use  without  just  com- 
pensation. This  com^Densation  for  damaging  as  well 
as  taking  must  be  ascertained  by  commissioners  or  a 
jury.  This  just  compensation  for  damaging  as  well  as 
taking  must  be  paid  to  the  owner  or  into  court  for  the 
owner  before  the  owner's  proprietaiy  rights  are  di- 
vested. Here  Bingham's  property  is  damaged  by  this 
grading  of  the  street.  These  damages  are  not  ascer- 
tained by  a  jury  or  commissioners;  they  are  not  paid 
to  the  owner  or  into  court  for  the  owner  and  the  court 
proceeds  under  this  statute  to  enter  judgment  against 
the  damaged  lot,  sell  it  and  make  a  sheriff's  deed  there- 
for, and  thereby  divest  defendant  of  his  title  to  the 
damaged  lot  to  pay  the  contract  price  for  doing  the 
damage  in  the  interest  of  the  public.  The  contractor 
makes  a  contract  to  grade  the  street,  thereby  damag- 


176  Law  of  Local  Taxation.  [Chap.  8 

ing  private  property  for  public  use.  ' '  Just  compensa- 
tion" for  such  damage  has  not  been  made  and  is  not 
expected  to  be  made.  By  the  Constitution  the  city  is 
liable  for  damaging  private  property  for  public  use 
just  as  much  as  it  is  liable  for  taking  private  property 
for  public  use.  The  contractor  who  thus  helps  the  city 
to  accomplish  this  constitutional  wrong  is  not  only  ex- 
empt from  all  charges  for  damaging  this  property,  but 
he  has  a  legal  claim  to  sell  the  abutting  damaged  land 
to  pay  his  charges  for  doing  this  wrong — for  violating 
the  Constitution. 

"Much  latitude  of  discretion  in  exercising  that 
power  belongs  to  the  legislative  department,  and  the 
courts  will  not  interfere  with  it  unless  there  is  some 
manifest  abuse  which  is  not  claimed  in  this  case."  [S. 
C,  100  Mo.  at  307.] 

How  much  latitude  of  discretion  are  the  courts  to 
allow  to  the  Legislature?  The  existence  of  this  power 
does  not  depend  on  the  extent  to  which  it  miay  be  exer- 
cised. If  the  power  exist  at  all,  it  must  be  exercised  at 
the  will  of  those  in  whose  hands  it  may  be  placed. 
Courts  ought  not  to  be  driven  ''to  the  perplexing  in- 
quiry, so  unfit  for  the  judicial  department,  what  degree 
of  taxation  is  the  legitimate  use  and  what  degree  miay 
amount  to  the  abuse  of  the  power. ' '  The  power  to  with- 
hold any  portion  of  the  "just  compensation"  for  tak- 
ing or  damaging  private  property  for  public  use,  was 
never  given  expressly  or  by  implication  by  wa}'  of  tax- 
ation or  otherwise,  except  in  case  of  the  special,  pecu- 
liar, exceptive  benefit  which  may  be  a  part  of  the  "just 
compensation"  of  the  Constitution.  A  man  may  be 
paid  in  tenefits  as  well  as  in  cash.  But  the  Legisla- 
ture never  had  power  to  determine  what  is  just  com- 
pensation for  land  taken  or  damaged  for  public  use, 
nor  what  part,  if  any,  of  this  just  compensation  may 
be  in  benefits.  It  is  no  part  of  the  legislative  function 
of  our  government,  State  or  National. 


Chap.  8]       Changes  in  Judicial  Rulings.  177 

To  grade  a  street  and  thereby  damjage  private 
property  for  public  use  without  just  coiinpensatioii  for 
such  damage,  sell  the  damaged  property  to  pay  the  cost 
of  doing  the  damage,  and  l)y  deed  pass  away  the  title 
of  the  owner  is,  according  to  this  case,  no  abuse  of  this 
power  (whatever  it  may  be  called).  As  a  matter  of  idle 
curiosity,  I  wonder  what  would  be  an  abuse  of  this 
power. 

A  power  that  does  not  exist  can  not  l>e  abused. 
Here  is  a  positive  constitutional  prohibition.  There  is 
no  express  authority  given  to  \evj  local  taxes  to  pay 
for  doing  acts  expressly  forbidden  by  the  Constitution. 
It  is  certainly  not  the  intention  of  that  Constitution 
that  such  power  of  local  taxation  should  be  implied. 

The  grading  of  this  street  did  not  benefit  Bing- 
ham's property,  says  his  answer,  and  the  demurrer  ad- 
mits it.  The  cost  of  the  grading  may  equal  or  exceed  the 
value  of  the  lot.  The  public  grade  this  street  and  take 
the  abutting  property  to  pay  for  it.  Judgment  is  render- 
ed against  the  lot  for  the  grading  (not  a  benefit  to  the 
lot  but  a  positive  injury),  execution  issues,  the  lot  is 
sold  and  a  sheriff's  deed  is  made  convejang  the  title. 
The  owner  lost  his  lot.  What  did  he  get  for  it  ?  The  lot 
was  not  benefited.  The  case  even  admits  it  was  dam- 
aged. AA^ij^  not  build  a  courthouse  in  the  same  way? 
Or  a  jail,  or  other  improvement,  such  as  a  poorhouse? 
If  the  law  had  caused  the  sale  of  Bingham's  St.  Louis 
lot  not  damaged  it  would  have  been  better.  The  van- 
dalism of  the  act  would  have  been  lost. 

In  this  case  the  contest  arose  under  the  Constitu- 
tion of  ^Missouri  of  1875,  providing  that  private  pro]> 
erty  shall  not  be  taken  or  damaged  for  public  use  with- 
out just  compensation.  If  the  land  com?}Wsing  the 
street  had  belonged  to  Mr.  Bingham  as  part  of  the  lot 
taxed  in  the  above  case,  and  there  had  been  a  condem- 
nation, then  first,  if  the  street  had  been  a  damage  to  Mr, 

12 


178  L-\w  OF  Local  Taxation.  [Chap.  8 

Bingham's  remaining  property,  certainly  that  remain- 
ing property  could  not  be  taxed  locally;  second,  if  the 
street  had  been  no  benefit  to  the  remaining  property,  it 
could  not  have  been  taxed  locally ;  third,  if  the  condem- 
nation jury  had  found— if  it  was  a  fact  (as  admitted  by 
this  demurrer)—  that  the  remaining  portion  of  Bing- 
ham's lot  was  benefited  generally  in  common  with  all 
other  property  in  the  vicinity,  then  the  tax  would  be 
unconstitutional  according  to  the  repeated  adjudica- 
tions of  the  Supreme  Court  of  Missouri.  Nobody  ever 
dreamed  that  this  tax  could  be  constitutionally  laid  if 
there  was  in  fact  a  damage  while  a  general  benefit  was 
insufficient  and  rendered  the  tax  unconstitutional. 

If  the  general  benefit  be  wanting ;  if  the  special 
benefit  be  wanting ;  if  in  their  stead  a  damage  exists, 
the  tax  imiDosed  would  have  been  unconstitutional. 
This  was  the  Constitution  of  Missouri  prior  to  1875  as 
interpreted  by  her  Supreme  Court.  Now  the  Constitu- 
tion is  changed.  Private  property  can  not  be  taken  or 
damaged  for  public  use  without  just  compensation. 
Private  property  can  now  no  more  be  damaged  for  pub- 
lic use  without  just  compensation  than  it  can  now  or 
could  before  1875  be  taken  for  public  use  without  just 
compensation.  The  owner  shall  not  be  disturbed;  his 
proprietary  rights  shall  not  be  divested. 

In  Keith  v.  Bingham,  supra,  the  Missouri  Su- 
preme Court  say : 

"Much  latitude  of  discretion  in  exercising  that 
power  [local  taxation]  belongs  to  the  Legislature,  and 
the  courts  will  not  interfere  with  it  unless  there  is  some 
manifest  abuse,"  etc. 

This  means  that  the  courts  may  interfere  with  the 
exercise  of  the  legislative  power,  a  power  lodged  in  the 
legislative  department  of  the  government  under  the 
Constitution.  The  courts  may  judicially  veto  legisla- 
tive acts  enacted  in  strict  confonnity  to  the  Constitu- 


Chap.  8]        Changes  in  Judicial  Rulings.  179 

tion  of  the  State  and  the  Constitution  of  the  United 
States. 

In  tlie  exercise  of  this  granted  power  "Much  lati- 
tude of  discretion  is  allowed."  How  much?  Who  shall 
determine  this  question  of  discretion  in  the  exercise  by 
the  Legislature  of  its  constitutional  powers?  Here  we 
are,  "Driven  to  the  perplexing  inquiry  so  unfit  for  the 
judicial  de])artment,  what  degree  of  taxation  is  the 
legitimate  use  and  what  degree  may  amount  to  the  abuse 
of  power."  [State  v.  North  and  Scott,  27  Mo.  464  (A. 
D.  1858),  at  479  bottom.] 

"It  is  obvious  that  the  same  power  which  imposes 
a  light  duty  can  imi)ose  a  very  heavy  one  which  amounts 
to  a  prohibition.  Questions  of  power  do  not  depend  on 
the  degree  to  ivhich  it  may  be  exercised.  If  it  may  be 
exercised  at  all  it  must  be  exercised  at  the  will  of  those 
in  whose  hands  it  is  placed.  The  question  is,  where 
does  the  power  reside,  not  how  far  it  will  probably  be 
abused!  and  the  greater  or  less  extent  in  which  it  may 
be  exercised  does  not  enter  into  the  inquiry  concerning 
its  existence.  AVhen  we  are  imiuiring  whether  a  partic- 
ular act  is  within  this  prohibition  the  question  is,  not 
whether  the  State  may  so  legislate  as  to  hurt  itself,  but 
whether  the  act  is  within  the  words  and  mischief  of  the 
prohibitory  clause."  [Brown  v.  Maryland,  12  AMieaton 
439,  quoted  in  State  v.  North  and  Scott,  27  Mo.  464,  at 
480.] 

The  same  power  which  imposes  a  very  light  local 
tax  may  impose  a  very  heavy  local  tax. 

Here  are  two  express  limitations  on  the  ]^ower  of 
the  State:  First  private  property  shall  not  be  taken 
for  public  use  without  just  com]iensation ;  second,  pri- 
vate property  shall  not  be  damaged  for  public  use  with- 
out just  compensation.  Of  what  avail  is  this  express 
limitation  of  ]iower  if  the  implied  power  to  tax  can  nul- 
lify it?    The  State  takes  or  damages  the  citizen's  prop- 


180  Law  op  Local  Taxation.  [Chap.  8 

erty  with  one  hand  and  with  the  other  hand  takes  by 
local  taxation  that  citizen's  money  to  pay  for  it.  The 
State  freely  gives  this  just  compensation  for  damaging 
or  taking  and  then  pays  the  owner  by  taxing  his  just 
comj^ensation  one  hundred  per  cent.  The  courts  imply 
a  power  in  one  part  of  the  Constitution  which  nullifies 
an  express  limitation  or  restriction  in  another  part  of 
that  Constitution. 

With  the  left  hand  of  eminent  domain  the  State  de- 
livers to  the  owner  of  real  estate  taken  or  damaged 
"just  comii^ensation "  for  such  land  taken  or  damaged 
for  public  use,  and  with  the  right  hand  of  local  taxation 
may  take  the  whole  sum  to  pay  it.  The  State  can  not 
take  the  land  under  the  power  of  eminent  domain  with- 
out paying  value  for  it,  but  the  State  can  take  the  whole 
value  under  the  power  of  taxation  even  if  the  work  for 
which  the  tax  is  levied  be  a  damage.  Such  is  the  ex- 
traordinary power  of  this  "constitutional  road  agent." 
Say  the  Supreme  Court  of  Missouri  in  City  of  St.  Louis 
to  y^e  V.  Allen,  53  Mo.  44,  at  55: 

'  '■  It  may  be  said  that  the  property  may  not  be  suffi- 
cient to  pay  the  assessment ;  it  is  a  sufficient  answer  to 
this  to  say,  that  it  will  not  be  presmned,  that  it  was 
ever  intended  that  a  corporation  in  the  exercise  of  this 
liigh  prerogative  should  absorb  the  whole  value  of  a 
person's  property  and  then  come  on  him  for  the  de- 
ficit. The  very  idea  of  such  an  assumption  on  the  part 
of  either  the  city,  or  the  state  Legislature,  would  be 
sufficient  to  startle  one  who  had  even  the  most  crude 
notion  of  the  objects  and  purposes  of  a  just  or  enlight- 
ened government.  The  idea  that  a  city  could  improve 
a  street,  and  assess  the  property  benefited  thereby 
[how  about  the  property  damaged  for  which  damage 
no  redress  could  be  had  at  this  time  (A.  D.  1873)]  and 
sell  the  entire  property,  and  then  go  on  the  owner  of 
the  property,  who  may  reside  out  of  the  city  and  sell 


Chap.  8]       Changes  in  Judicial  Rulings.  181 

his  property  there  to  pay  the  balance  of  the  assessment, 
and  this  all  in  consideration  of  the  benefit  [notice  the 
benefit  is  assumed  not  i)roved]  conferred  on  his  proi> 
erty,  which  was  already  sold,  would  seem  in  its  results 
like  taking  the  property  of  the  owner  and  converting  it 
to  public  use  without  any  just  compensation.  I  do  not 
believe  that  by  this  indirection  you  can  do  that  which  is 
forbidden  by  the  Constitution  if  directly  done.  If  a 
personal  judgment  can  be  rendered  in  such  case,  all 
this  may  happen.  It  is  true,  it  is  not  likely  to  luippen, 
but  the  fact  that  it  may  possibly  happen  is  enough  to 
condemn  the  laic." 

It  may  possibly  happen  that  abutting  property  will 
be  damaged  by  work  done  on  the  street  in  front  of  it 
and  then  the  vandalism  is  apparent  in  selling  damaged 
abutting  i)roi)erty  to  pay  the  cost  of  doing  the  damage 
in  place  of  selling  distant  property  not  damaged  by  the 
work. 

The  reader  will  note  that  this  first  case  is  one  for 
grading  a  street;  a  local  tax  for  such  grading.  ''The 
damage  resulting,  by  causing  the  plaintiffs  to  rebuild 
or  prop  up  their  falling  walls  is  consequential,  and  as 
it  is  a  consequence  of  the  exercise  of  a  power  granted 
by  the  State  to  municipal  corporations,  for  public  pur- 
poses, and  the  power  has  not  been  abused,  but  skillfully 
and  discreetly  exercised,  the  city  authorities  are  not  re- 
sponsible." [Taylor  V.  St.  Louis,  U  Mo.  20,  at  24.] 
''The  damage  resulting,"  say  the  court.  Then  there 
ivas  damage.  Taylor's  property  was  damlaged.  But  it 
was  ''damnum  obsque  injuria,"  still  it  was  ''danmum." 
That  damage  is  forbidden  now;  it  was  not  then.  This 
was  the  veiy  thing  the  Constitution  of  1875  aimed 
to  prevent.  Streets  were  graded  and  houses  left  high 
up  in  the  air  and  all  access  to  the  street  cut  off,  a  re- 
sult absolutely  ruinous  to  the  landowner.  He  could 
not  get  to  or  from  his  house.    He  had  a  property  right 


182  Law  of  Local  Taxation.  [Chap.  8 

in  the  street  different  from  the  public  right,  the  right 
of  ingress  and  egress  to  and  from  his  own  house.  This 
riglit  was  injured  or  destroyed  without  payment  of 
anything  for  it.  His  property  was  seriously  damaged. 
TMiat  is  a  house  in  town  worth  if  you  cannot  get  to  it? 
The  provision  of  the  Missouri  Constitution  of 
1875  is,  that  ]irivate  property  shall  neither  be  taken  nor 
damaged  for  public  use  without  just  compensation.  If 
a  city  can  grade  a  street  and  leave  a  house  on  abutting 
land  high  up  in  the  air  and  cut  off  all  means  of  ingress 
and  egress  and  thereby  damage  the  property— if  a  city 
can  do  this  and  not  be  guilty  of  a  violation  of  this  con- 
stitutional provision  as  to  damaging  private  property 
for  public  use,  the  writer  is  at  a  loss  to  know  where 
to  search  for  such  a  case.  The  Topeka  bonds  to  aid 
manufacturers  in  Topeka  {Loan  Association  v.  To- 
peka) were  without  authority  because  the  power  to  tax 
was  wanting.  If  Topeka  made  any  bond  then  she  must 
pay  it.  To  pay  the  bond  she  must  tax.  If  Topeka  taxes 
her  people  it  must  be  for  a  public  purpose.  Inducing 
manufacturers  to  come  to  Topeka  and  there  establish 
their  plants  by  voting  bonds  to  them  is  not  within  the 
bounds  of  legislative  power.  But  according  to  Keith 
V.  Bingham,  100  Mo.  300,  a  tax  to  pay  these  bonds 
would  have  been  valid,  and  would  have  been  enforced. 
An  implied  want  of  authority  to  tax  defeated  the  To- 
peka bonds.  An  express  want  of  authority  to  tax,  a 
prohibition  to  grade  the  street,  sustained  the  tax  in 
Keith  V.  Bingham.  To  put  the  case  on  a  bare  want  of 
authority  is  too  weak.  The  city  made  a  contract  pro- 
hibited by  the  Constitution,  viz.,  a  contract  to  grade 
this  street  which  the  record  admits  ''damaged  and  did 
not  benefit"  Bingham's  property,  and  the  answer  de- 
murred to  states  that  no  compensation  for  such  danii- 
ages  were  ever  paid  to  Bingham  or  any  one.  ''No  com- 
pensation was  made  or  tendered  to  or  paid  into  court 


Cha]).  8]       Changes  in  Judicial  Rulings.  183 

for  any  person  as  the  owner  of  said  lot  on  account  of 
said  damages"  (100  Mo.  at  301).  Here  the  city  made 
a  contract  to  grade  this  street  and  to  pay  for  it.  How 
it  was  to  be  paid  for  is  immaterial.  The  contract  was 
to  pay.  Here  is  a  positive  constitutional  prohibition 
against  doing  the  thing  contracted  to  l)e  done.  Yet  the 
city  levies  the  special  tax  to  pay  for  doing  this  prohib- 
ited work,  and  here  the  city  enforces  collection  of  the 
tax. 

Suppose  Topeka  had  levied  a  tax  to  pay  those 
bonds  to  aid  private  enterprises,  looking  at  the  reasons 
given  and  the  decision  and  opinion  rendered,  would  the 
court  have  enforced  the  tax  while  it,  the  couii;,  denied 
judgment  on  the  bonds?  Cities  and  towns  are  prohibit- 
ed from  becoming  indebted  to  an  amount  exceeding  five 
per  cent  of  the  assessed  value  of  the  property  of  the 
city  or  town.  Can  a  cit>'  or  town  issue  bonds  to  the  ex- 
tent of  fifty  per  cent  of  its  taxable  property  and  then 
levy  a  tax  to  pay  such  bonds  and  enforce  the  tax  while 
the  bonds  to  be  paid  by  such  tax  are  prohibited  by  the 
Constitution  ?     The  court  use  this  language,  page  306 : 

"If  the  taxing  power  has  been  called  into  play  in 
the  mode  required  by  law  for  the  purpose  of  paying  for 
a  local  improvement,  such  as  paving  or  grading  a  street 
[Here  it  was  grading],  it  is  no  defense  to  a  bill 
issued  therefor  to  say  as  is  said  here  that  the  street  or 
improvement  damaged  and  did  not  benefit  the  property 
though,  if  such  were  the  fact  the  party  injured  might 
have  his  action  (on  a  proper  showing)  under  the  Con- 
stitution for  such  injury. ' ' 

The  party  injured  may  have  his  action  for  the  in- 
juiy.  But  here  the  injury  was  done;  an  injury  forbid- 
den by  the  Constitution.  This  injury  was  done  by  con- 
tract and  now  the  proposition  is  to  tax  the  injured 
property  to  pay  the  cost  of  doing  the  injury  to  it  and 
call  on  the  courts  to  enforce  the  tax  against  the  injured 


184  Law  of  Local  Taxation.  [Chap.  8 

property.  Here  the  street  in  front  of  a  home  is  graded 
and  the  home  is  left  high  up  in  the  air  and  wholly  inac- 
cessible; the  property  is  damaged  thousands  of  dol- 
lars; time  and  labor  were  involved  in  grading  this 
street ;  now  the  proposal  is  to  tax  this  injured  property 
to  pay  the  cost  of  doing  this  forbidden  damage.  The 
injury  is  admitted  and  the  tax  to  pay  the  cost  of  doing 
it  is  enforced.  The  injury  to  the  property  is  forbidden 
by  the  Constitution,  Whoever  owns  this  injured  prop- 
erty must  pay  the  cost  of  the  fiendish  vandalism  that 
did  the  injury.  This  tax  was  originally  called  a  tax  on 
benefits,  or  for  benefits ;  now  it  is  a  tax  on  the  injured 
property  for  the  injury  done  to  the  injured  property- 
owner.  At  one  time  a  tax  to  pay  the  cost  of  a  public 
improvement  that  was  a  general  benefit  to  the  property 
was  unconstitutional ;  now  it  is  constitutional  if  it  is  a 
tax  for  doing  a  w*ork  which  ruined  the  property.  The 
injured  property  is  taxed  to  pay  some  one  for  doing 
that  injury.  Municipal  bonds  were  valid  only  in  the 
hands  of  a  purchaser  for  value  without  notice.  The 
local  taxbill  is  valid  in  the  hands  of  the  original  wrong- 
doer. 

The  defense  to  which  a  demurrer  was  sustained  is 
in  the  words  and  figures  following,  \dz. : 

''Defendant  for  a  third  defense  to  the  tax-bills, 
sued  upon,  states  that  the  lot  described  in  plaintiff's 
petition  is  now  and  was  at  all  the  times  stated  in  plain- 
tiff ^s  petition,  private  property.  That  the  grading 
mentioned  in  plaintiff's  petition  was  done  for  public 
use  and  damaged  and  did  not  benefit  said  lot.  That  no 
compensation  was  made  or  tendered  to  or  paid  into 
court  for  any  person  as  the  owner  of  said  lot  on  ac- 
count of  such  damages.  Wherefore  the  defendant  asks 
judgment."    [lb.,  301,  at  bottom.] 

The  court  at  page  307  say  as  to  this  defense : 

"The  third  defense  in  the  answer  is  otherwise  in- 
sufficient.   It  does  not  allege  that  the  defendant  was  the 


Chap.  8]        Changes  in  Judicial  Rulings.  185 

owner  of  the  land  when  it  was  damaged  as  claimed.  In 
the  absence  of  such  allegation  no  defense  would  exist, 
even  under  defendant's  theory  of  the  purport  of  the 
constitutional  provision  relied  on.  We  have  recently 
held  that  such  damages  are  a  personal  claim  of  the 
owner  of  the  property  at  flie  time  of  the  injury  and 
that  they  do  not  run  with  the  land.  [Hilton  v.  St. 
Louis,  99  Mo.  199.]  Hence,  in  any  view  taken  of  the 
answer,  the  ruling  of  the  trial  court  on  the  denmrrer  to 
it  was  correct." 

The  court,  it  seems  to  the  writer,  erred  in  consid- 
ering the  defense  as  in  the  nature  of  a  counterclaim  or 
a  confession  and  avoidance  whereas  it  is  in  fact  in  the 
nature  of  a  traverse,  a  denial  of  the  validity  of  the  tax 
on  the  ground  that  it  is  illegal — unconstitutional  and 
the  facts  are  set  out  constituting  its  illegality— its  un- 
constitutionality. It  is  on  its  face  intended  as  a  denial 
of  all  authority  for  the  tax  in  suit,  rather  a  prohibition 
to  act  and  then  tax  for  the  prohibited  act.  If  it  were 
intended  as  in  the  nature  of  a  connterclaim  for  damages 
for  injuries  to  this  property,  then  the  defense  is  cer- 
tainly defective  in  all  respects  indicated  in  the  opinion 
and  in  many  more.  If  the  property  injured  did  not  be- 
long to  the  defendant  at  the  time  of  the  injury,  and  if 
such  damages  were  not  assigned  to  defendant,  then  cer- 
tainly such  defendant  would  not  own  such  damages  or 
''just  compensation,"  and  for  that  reason  could  not 
get  judgment  for  what  did  not  belong  to  him.  De- 
fendant could  not  recover  from  the  plaintiff  ''just  com- 
pensation" for  damaging  a  stranger's  land,  or  land  not 
his  own. 

Again,  the  injuries  alleged  are  not  alleged  to  have 
been  done  by  the  plaintiff,  and  hence,  a  counterclaim 
against  him  could  not  be  sustained.  If  it  were  a  coun- 
terclaim for  injuries  done  in  a  transaction  out  of  which 
the  tax-bill   sued   on   originated,   and   if   the   plaintiff 


186  Law  of  Local  Taxation.  [Chap.  8 

were  liable  for  the  injuries  complained  of,  the  amount 
of  damages  is  not  stated.  The  court  certainly  were  not 
bound  to  render  judgment  against  the  plaintiff  when 
the  counterclaim  did  not  ask  it  or  state  the  amount  of 
the  damages,  or  ask  judgment  against  any  one  for  any 
amount. 

The  language  of  the  court  assumes  this  to  be  the 
constitutional  law  of  the  State.  Mr.  Jones  owns  a  lot 
abutting  on  the  street.  The  street  is  graded  and  Jones' 
house  is  left  high  up  in  the  air;  all  access  to  it  is  cut 
off.  His  property  is  damaged  to  the  extent  of  eighty 
per  cent  of  its  value  before  the  grading.  Jones,  with- 
out paying  for  the  grading,  sells  the  lot  to  Bingham. 
Damages  resulting  from  grading  are  not  sold  to  Bing- 
ham. Facts  like  these  are  admitted  by  the  demurrer. 
' '  The  grading  damaged  and  did  not  benefit  the  said  lot. 
That  no  compensation  was  made  or  tendered  to  or  paid 
into  court  for  any  person  as  the  owner  of  said  lot  on 
account  of  said  damages,"  either  Jones  or  Bingham. 
The  property  was  damaged  for  public  use;  the  owner 
got  nothing  for  such  damaging  and  then  the  damaged 
lot  is  taxed  to  pay  the  damage  and  that  tax  to  pay  that 
damage  which  the  Constitution  prohibited — that  tax  is 
enforced  in  this  suit.  A  power  is  implied  (certainly 
not  conferred  in  terms)  in  the  Constitution  to  levy  a 
local  tax  for  an  act  absolutely  prohibited.  The  Con- 
stitution says  that  lot  shall  niot  be  damaged  for  public 
use  without  just  compensation ;  that  just  compensation 
shall  be  ascertained  by  a  jury  or  commissioners.  Un- 
til this  just  compensation  shall  be  paid  to  the  owner  or 
into  court  for  the  owner,  the  owner  shall  not  be  dis- 
turbed. But  here  he  was  disturljed ;  the  street  in  front 
of  his  house  was  graded  or  cut  down;  his  house  was 
left  high  up  in  the  air.  You  have  disturbed  that  owner 
when  the  Constitution  said  you  should  not.  Can  you 
tax  locally  the  damaged  landowner  or  his  lot  and  house 


Chap.  8]       Changes  in  Judicial  Rulings.  187 

to  pay  for  doing  this  forbidden  act  ?  If  the  lot  had  l)een 
taken  for  public  use,  could  the  lot  thus  taken  or  other 
lots  of  the  owner  be  taxed  to  pay  for  the  forbidden  tak- 
ing? No  person  shall  be  deprived  of  life,  liberty  or 
property  without  process  of  law.  A  i)erson  is  deprived 
of  property  without  due  process  of  law;  can  you  by  im- 
plication tax  locally  his  property  to  pay  for  the  forbid- 
den act! 

In  Loan  Association  v.  Topeka,  20  Wall.  655,  and 
in  Cole  v.  LaGrange,  113  U.  S.  1,  there  was  a  mere  want 
of  authority  to  tax.  Here  is  a  constitutional  prohibi- 
tion. The  property  was  damaged  whether  Bingham 
owned  it  or  some  one  else  owned  it.  The  public  pro- 
ceeded to  disturb  the  owner  of  that  property,  whether 
Bingham  or  Jones  can  make  no  difference.  The  Consti- 
tution of  the  State  prohibited  that  disturbance.  Can 
the  State  tax  the  damaged  property  for  the  cost  of  the 
damage  when  the  Constitution  prohibits  the  damage  in 
clear  express  terms?  The  property-owner  shall  not  be 
disturbed.  The  city  disturbs  the  property-owner  and 
taxes  him  to  pay  for  the  prohibited  disturbance.  The 
plea  was  that  of  the  want  of  authority.  The  decision 
was  that  the  city  had  authority  to  tax  locally  for  doing 
what  the  Constitution  prohibited  it  from  doing  and  the 
tax  was  enforced. 

The  reader  will  notice  that  the  clause  of  the  Con- 
stitution in  question  is  restrictive  in  character.  It  for- 
bids certain  things  to  be  done.  These  restrictions— 
these  limitations  on  the  powers  of  the  government — 
need  no  legislation  to  enforce  them.  The  courts  have 
considered  that  question  under  the  present  Constitu- 
tion of  Missouri.  The  first  case  to  be  noticed  is  that  of 
the  St.  Joseph  Board  of  Public  Schools  v.  Patton  et  al., 
62  Mo.  444,  et  seq.,  decided  at  May  term,  1876,  under 
the  Constitution  adopted  November  30,  1875. 

The  Board  of  Public  Schools  under  acts  of  March 


188  Law  of  Local.  Taxation.  [Chap.  8 

3,  1866,  and  March  20,  1872  (its  incoi-poration  acts), 
had  power  to  make  estimates  for  salaries  of  teachers 
and  expenses  of  the  schools  and  for  building  school- 
houses,  and  the  board  were  required  to  report  this 
amount  to  the  county  court,  and  thereupon  the  court 
were  required  to  make  such  levy  on  all  taxable  property 
in  the  district,  but  the  levy  could  not  exceed  seven  mills 
on  the  dollar.  The  Constitution  had  gone  into  effect 
November  30,  1875,  and  under  its  provisions  only  four 
mills  could  be  levied,  except  that  this  rate  might  be  in- 
creased to  sixty-five  cents  on  the  $100  valuation  by  a 
vote  of  the  taxpayers,  under  acts  of  the  Legislature  to 
be  passed.  The  Legislature  had  passed  no  law  on  the 
subject.  The  county  court  levied  only  four  mills,  the 
constitutional  limit ;  the  court  refused  to  make  any  fur- 
ther le\^  and  the  board  brought  mandamus  proceed- 
ings against  the  judges  of  the  county  court  asking  them 
to  be  compelled  to  levy  seven  mills— three  mills  more 
than  the  Constitution  permitted.  The  court  at  page 
448,  et  seq.,  say : 

''In  the  first  part  of  section  10,  the  constitutional 
rates  of  taxation  for  county,  city,  town  and  school  pur- 
poses are  fixed.  The  provisions  above  quoted  allow 
certain  modifications  of  these  rates.  The  question  then 
is,  must  the  rates  of  taxation  fijxed  in  the  Constitution, 
when  accompanied  with  provisions  in  that  instrument 
authorizing  their  modification,  await  the  action  of  the 
Legislature  to  provide  the  means  of  obtaining  such 
modification  before  the  rates  themselves  go  into  opera- 
tion? 

"The  fifteenth  section  of  the  schedule  to  the  Con- 
stitution declares  that  'The  General  Assembly  shall 
pass  all  such  laws  as  may  be  necessary  to  carry  this 
Constitution  into  full  effect. '  There  is  no  way  of  enforc- 
ing this  injunction  on  the  Legislature.  Under  our  sys- 
tem of  government  there  is  no  power  to  compel  the  leg- 


Chap.  8]        Changes  in  Judicial  Rulings.  189 

islative  department  of  government  to  make  laws.  Con- 
stitutions may  restrict  legislative  powers,  and  declare 
what  laws  shall  be  valid ;  but  from  the  very  nature  of 
legislative  power,  its  exercise  in  a  particular  case  must 
depend  upon  the  volition  of  the  Legislature.  Respon- 
sibility to  constituency,  and  a  sense  of  public  duty,  are 
the  only  incentives  which  can  prompt  legislative  ac- 
tion. 

"In  the  first  Constitution  of  this  State,  adopted  on 
its  admission  into  the  Union,  and  in  the  succeeding  one, 
adopted  in  1865,  the  General  Assembly  was  directed  to 
provide  by  law  a  mode  of  suing  the  State ;  yet  it  is  well 
known  that  for  upwards  of  fifty  years  this  mandate  was 
disregarded,  and  no  one  ever  suggested  that  it  could  be 
enforced,  unless  it  was  the  pleasure  of  the  Legislature 
that  it  should  be. 

**  If,  then,  the  rates  of  taxation  declared  in  the 
eleventh  and  twelfth  sections  of  the  tenth  article  of  the 
Constitution  depend  for  their  enforcement  upon  the  leg- 
islative department  of  the  government,  they  are  mere 
abstractions,  mere  declarations  of  the  opinion  of  the 
convention  which  framed  the  Constitution,  entitled  of 
course  to  such  weight  as  the  opinions  of  so  able  and  re- 
spectable body  necessarily  possesses,  but  effecting  no 
constitutional  barriers  against  legislative  extrava- 
gance or  constitutional  assurances  of  retrenchment  in 
public  expenditures  and  taxation   consequent   thereon. 

''The  convention  were  doubtless  aware  of  their  in- 
ability to  coerce  the  legislative  department  into  the 
enactment  of  laws,  which  in  the  opinion  of  the  conven- 
tion were  desirable,  and  therefore,  declared  certain 
rates  and  limits  of  taxation  as  the  constitutional  lim- 
its and  rates,  providing  at  the  same  time  a  mode  by 
which  the  Legislature  and  the  people  might  exceed 
them  if  they  saw  fit.  Any  construction,  whkh  snakes 
these  constitutional  restrictions  dependent  on  legisJa- 


190  Law  of  Local  Taxation.  [Chap.  8 

tive  action,  destroys  their  vitality.  The  Legislature  may 
Dot  see  proper  to  pass  any  laws  affording  an  opix)r- 
tiinity  to  the  voters  to  increase  the  school  tax  to  one- 
per  cent  in  cities  and  towns,  and  .65  of  one  per  cent 
in  county  school  districts;  and  if  it  is  conceded  that 
the  restriction  to  four  mills  on  the  dollar  needs  legisla- 
tion to  enforce  it,  because  the  process  by  which  this  rate 
of  taxation  may  be  increased  does,  then  in  the  absence 
of  any  legislation  there  is  no  limit  and  these  provisions 
of  the  Constitution  are  lifeless.  After  the  1st  of  July, 
1877,  the  laws  inconsistent  with  them  are  repealed ;  but 
if  no  legislation  occurs,  and  the  position  that  legisla- 
tion is  needed  to  enforce  the  restriction  is  a  correct  one, 
then  both  the  restriction  and  proviso  are  inoperative, 
and  the  Legislature  may  regulate  the  rate  of  taxation 
at  their  pleasure. 

''The  Legislature  already  possessed  the  power  of 
limiting  taxation  to  the  maximum  adopted  in  the  Con- 
stitution; but  it  was  not  the  object  or  intention  of  the 
framers  of  the  Constitution  to  leave  these  limits  to  leg- 
islative discretion;  but  to  declare  constitutional  limits 
which,  until  removed  in  the  mode  i)ointed  out  in  the 
Constitution,  should  prevail  on  its  adoption.  If  the 
Legislature  and, the  people  desire  to  increase  this  rate, 
a  mode  is  provided  by  which  it  may  be  done,  but  until 
this  is  done  the  constitutional  limit  prevails. 

' '  The  provision  of  the  Constitution  required  no 
legislation  to  enforce  it,  and  therefore  on  the  adoption 
of  the  Constitution  went  into  effect.  The  proviso  by 
which  a  mode  was  appointed  to  alter  it  to  a  certain  ex- 
tent, and  which  depended  on  legislative  action,  does 
not  preveait  the  restriction  from  going  into  effect. ' ' 

The  writer  is  aware  of  the  numerous  decisions 
that  the  whole  of  article  10  of  the  Missouri  Constitu- 
tion of  1875  does  not  include,  and  was  not  intended  to 
include,  special  assessments   or  local   taxes   for  work 


Chap.  8]       Changes  in  Judicial  Rulings.  191 

done  in  front  of  the  property.  Tlie  power  is  the  power 
of  taxation,  and  it  is  not  restricted  eo  nomine  as  taxa- 
tion in  article  10.  But  the  question  is,  Should  the  courts 
imply  a  power  in  the  Legislature  to  levy  a  local  tax  on 
injured  property  for  doing  an  act  (injurious  to  that 
property)  prohibited  by  the  Constitution.'  Here  we 
have  a  constitutional  provision  that  private  property 
shall  not  be  taken  or  damaged  for  public  use  without 
just  compensation.  Is  this  a  restnction  in  and  of  it- 
self, or  does  it  require  legislation  to  enforce  it? 

In  Householder  v.  City  of  Kansas,  83  Mo.  488  (A. 
D.  1884),  in  rendering  the  opinion  the  court  at  page 
492,  bottom,  say : 

"Prohibitory  clauses  in  considerations  are  gener- 
ally self-enforcing;  twenty  sections  of  the  second  ar- 
ticle of  our  Constitution,  including  the  one  under  cont- 
sideration,  are  prohibitory  and  on  examination  all  or 
nearly  all  of  them  will  he  found  to  effect  their  purpose 
icitJwut  the  aid  of  legislation.  The  things  therein  nam- 
ed are  prohibited.  A  legislative  enactment  could  not  do 
more  toward  the  invalidation  of  the  prohibited  acts.  Tt 
might  provide  penalties  for  breaches  of  a  prohibitory 
constitutional  provision  where  the  Constitution  itself 
])rovides  none.  For  instance,  no  act  of  the  Legislature 
could  make  it  any  more  illegal  to  take  money  from  the 
public  treasury  in  aid  of  any  church.  The  General  As- 
sembly might  impose  a  penalty  or  other  punishment  for 
the  act  of  taking  money  from  the  public  treasury  in  aid 
of  a  church,  but  without  any  such  legislation  the  courts 
would,  under  section  7,  article  2,  of  the  Constitution, 
hold  the  act  illegal  and  the  person  so  taking  the  money 
responsible  for  it."  But  in  the  case  under  considera- 
tion the  contractor  who  does  the  damage  to  private 
property,  prohibited  by  the  Constitution,  is  not  only 
not  responsible  for  it  as  a  wrongdoer,  but  the  statute 
gives  him  a  lien  on  the  injured  property  for  his  wrong- 


192  Law  of  Local  Taxation.  [Chap.  8 

ful  injurious  act.  For  this  prohibited  injury  the  city  has 
the  imi^Hed  power  to  tax  locally  the  injured  property  to 
pay  for  the  work  and  material  used  in  doing  the  prohib- 
ited injury. 

Further  in  same  case,  page   494,   the   same   court 
say: 

''By  its  charter  the  city  of  Kansas  has  authority 
by  condemnation  proceedings  or  otherwise  to  acquire 
and  hold  property  to  be  used  as  streets  and  alleys  and 
to  change  and  alter  the  grades  of  streets.  Under  sec- 
tion 21,  the  city  can  no  more  alter  or  change  the  grade 
of  a  street  to  the  damage  of  a  lot  abutting  upon  it,  with- 
out compensation  to  the  owner,  than  it  can  take  private 
proj^erty  for  public  use  without  compensation  to  the 
owner.  The  provision  in  relation  to  the  ascertainment 
of  such  compensation  applies  equally  to  the  taking  and 
damaging  of  property.  Will  it  be  contended,  until  the 
Legislature  shall  have  enacted  a  law  prescribing  the 
mode  for  the  ascertainment  of  the  compensation  to  the 
owner,  a  municipal  corporation  can  seize  and  appro- 
priate his  property  and  that  he  would  be  without  rem- 
edy against  the  corporation?  That  a  city  for  the  pur- 
pose of  repairing  its  streets  and  bridges  may  enter  up- 
on the  property  of  a  citizen  and  cut  timber  and  quarry 
stone  without  incurring  any  liability  whatever  I  Is  this 
important  constitutional  provision  to  protect  the  citi- 
zen in  his  rights  of  property  a  dead  letter  or  a  living 
principle  at  the  pleasure  of  the  Legislature^  Can  the 
Legislature  by  m>ere  inaction  nullify  and  set  it  aside?" 

Private  property  shall  not  be  taken  for  public  use 
without  just  compensation,  is  an  absolute  prohibition. 
Private  property  shall  not  be  damaged  for  public  use 
without  just  compensation,  is  likewise  an  absolute  pro- 
hibition. No  legislation  is  needed  to  enforce  either  pro- 
hibition. Until  this  just  compensation  shall  be  paid  to 
the  owner  he  shall  not   be  disturbed;  his   proprietary 


Chap.  8]        Changes  in  Judicial  Rulings.  193 

rights  shall  not  be  divested.  Here  are  positive  prohibi- 
tions; no  legislation  is  needed  to  complete  the  prohibi- 
tions. With  this  constitutional  law  thus  laid  down  read 
again  the  opinion  in  KeitJi  v.  Bingham,  at  page  306: 

**If  the  taxing  power  has  been  called  into  play  in 
the  mode  required  by  law  for  the  purpose  of  paying 
for  a  local  improvement,  such  as  paving  or  grading 
[this  tax-bill  was  for  grading  May  street],  it  is  no  de- 
fense to  a  bill  issued  therefor  to  say,  as  is  said  here, 
that  the  street  or  improvement  damaged  and  did  not 
benefit  the  property  though,  if  such  were  the  fact,  the 
party  injured  might  have  his  action  (on  a  proper  show- 
ing) under  the  Constitution  for  such  injury.  [House- 
holder V.  City  of  Kansas,  83  Mo.  488.]  If  the  city  had 
invoked  the  power  of  eminent  domain  unlawfully  in  the 
premises  it  could  be  held  accountable  therefor,  but 
that  would  not  interfere  with  the  collection  of  the  spec- 
ial taxbill  for  an  improvement  regularly  made  under 
the  taxing  power.  The  right  of  action  which  a  person 
might  thus  have  would  constitute  no  just  defense  to  the 
claim  of  the  contractor  who  had  made  the  improve- 
ment, and  to  whom  under  the  law  here  the  tax  assess- 
ment is  payable." 

''The  nature  of  these  special  taxes  has  been  al- 
ready so  fully  explained  by  judicial  decisions  in  this 
State  that  little  that  would  be  new  could  now  be  add- 
ed." Ver}^  apparently  the  court  has  said  something 
vei-y  new.  It  is  no  defense  that  the  grading  damaged 
the  lot.  The  Constitution  prohibited  such  grading  or 
any  other  act  that  would  damage  the  lot.  The  injured 
party  has  a  right  of  action  for  the  injury  done,  but  he 
is  compelled  by  local  taxation  to  pay  the  cost  of  such 
injury.  It  is  a  most  singular  law,  under  a  most  singu- 
lar Constitution,  that  compels  a  person  to  injure  his 
own  property  for  public  use  or  pay  others  for  injuring 
it. 

13 


194  Law  of  Local  Taxation.  [Chap.  8 

Here  in  our  Constitution  are  certain  absolute  re- 
strictions not  needing  legislation  to  enforce  them: 
First,  private  property  shall  not  be  damaged  for  public 
use  without  just  compensation  (Bingham's  private 
property  was  damaged  for  public  use  without  just  com- 
pensation). Second,  such  compensation  shall  be  ascer- 
tained by  a  jury  or  commissioners.  That  was  not  done. 
If  there  was  no  law  providing  for  jury  or  commission- 
ers, still  the  prohibition  remained  absolute.  The  Leg- 
islature could  not  repeal  the  law  providing  for  condem- 
nation cases  and  then  take  property  for  public  use 
without  paying  for  it,  in  the  face  of  the  constitutional 
prohibition  that  needs  no  legislation  to  enforce  it.  If 
there  were  a  law  enacted  by  the  Legislature  by  which 
just  compensation  for  damaging  private  property  for 
public  use  could  be  ascertained,  the  Legislature  could 
not  repeal  such  law  and  then  damage  property  at  their 
will  and  pleasure.  Third,  until  this  just  compensation 
for  damaging  private  property  for  public  use  shall  be 
paid  to  the  owner  the  property  shall  not  be  disturbed. 
Here  is  an  absolute  prohibition.  It  don't  need  legisla- 
tion to  enforce  it.  Bingham',  the  owner,  w*as  disturbed. 
The  property  was  disturbed.  It  can  not  be  said  that 
property  which  is  damaged  by  an  act  is  not  disturbed, 
by  that  act.  Although  damaging  this  property  was 
positively  prohibited  by  the  Constitution,  yet  it  was 
not  only  damaged  contrary  to  such  positive  prohibition 
not  needing  legislation  to  enforce  it,  but  the  owner  of 
that  property  must  pay  a  local  tax  for  doing  the  pro- 
hibited act  which  occasioned  that  prohibited  damage. 

And  the  courts  solemnly  tell  us  that  the  constitu- 
tional reason  for  such  a  tax  is  that  it  is  constitutional 
to  assess  the  cost  of  this  work  on  "henefitefr'  prop- 
erty. It  must  be  a  benefit  for  they  can  not  damage  it ; 
it  is  against  the  Constitution  to  do  so.  In  a  state  case 
under  an  indictment  for  larceny  of  a  horse,  the  plea  be- 


Chap.  8]        Changes  in  Judicial  Rulings.  195 

ing  not  guilty,  defendant  argued  he  could  not  steal  a 
horse;  the  law  proliiljited  it;  the  act  he  did  was  an  ab- 
solute nullity ;  no  defendant  should  be  sent  to  the  i^en- 
itentiary  for  doing  an  act  which  was  an  absolute  nul- 
lity. That  defendant  should  have  been  discharged— 
and  he  certainly  would  have  been  if  he  had  been  a  con- 
tractor for  city  work.  And  not  only  that,  the  court 
would  have  given  him  a  lien  on  the  stolen  horse  to  pay 
the  expenses  of  his  roguery.  Taking  private  property 
for  public  use  without  the  owner's  consent  and  without 
paying  for  it,  is  just  as  much  prohibited  by  the  Consti- 
tution as  taking  a  horse  for  private  use  without  the 
owner's  consent  and  without  paying  for  the  horse,  is 
prohibited  by  the  statute.  One  is  absolutely  prohibited 
by  statute  law;  the  other  is  absolutely  prohibited  by 
the  Constitution.  Absolutely  nothing  further  is  need- 
ed in  either  case  except  to  steal  the  town  lot  in  one  case 
and  to  steal  the  horse  in  the  other.  Damaging  private 
property  for  public  use  without  the  owner's  consent 
and  without  paying  for  it  is  just  as  much  ]H'ohibited  by 
the  Constitution  as  taking  private  property  for  public 
use  without  the  owner's  consent  and  without  paying 
for  it. 

Tn  the  case  of  taking  the  lot  for  ]mblic  use  without 
the  owner's  consent  and  without  paying  for  it  (stealing 
it),  the  owner  may  maintain  ejectment  and  thus  recover 
his  taken  (stolen)  lot  and  the  owner  of  the  horse  may 
maintain  replevin  for  his  taken  (stolen)  horse.  The 
lot  is  damaged;  the  horse  is  damaged.  The  damaged 
lot  is  charged  with  a  lien  for  the  cost  of  the  damage. 
AAHiy  not  charge  the  damaged  horse  with  a  lien  for  do- 
ing that  damage  ?  The  Constitution  was  intended  to 
prohibit  vandalism.  A  debt  exceeding  five  per  cent  of 
the  assessed  value  of  property  is  ])rohibited.  Can  a 
debt  of  one-hundred  ])er  cent  he  created  and  then  levy 
a  tax  to  ]-)ay  the  ]>rohibited  debt?    Tn  the  Topeka  case 


196  Law  of  Local  Taxation.  [Chap.  8 

and  in  the  LaGrange  case  there  was  a  mere  lack  of  au- 
thority to  tax ;  there  was  a  mere  lack  of  authority  to  is- 
sue the  bonds.  Here  the  debt  is  prohibited.  There  is 
a  difference  between  a  want  of  authority  and  a  prohibi- 
tion. 

The  grading  was  completed  before  the  tax  was  lev- 
ied. Before  a  street  can  be  graded  this  damage  must 
be  paid.  The  damage  was  complete  before  payment. 
After  performing  this  act  of  damage,  instead  of  paying 
Bingham  the  admitted  damage,  they  levied  a  tax  on  his 
propert^^  injured  by  this  grading.  The  Constitution  de- 
mands that  before  property  shall  be  taken  or  damaged, 
just  compensation  shall  be  ascertained  by  commission- 
ers or  a  jury  and  paid  to  the  owner  or  into  court  for  the 
owner.  The  Constitution  never  contemplated  that  the 
property-owner,  in  order  to  get  this  "just  compensa- 
tion," should  be  compelled  to  employ  and  pay  a  lawyer 
and  be  at  the  expense  and  annoyance  of  the  lawsuit  to 
get  that  which  the  Constitution  provides  shall  first  be 
paid  to  him  or  into  court  for  him. 

In  Keith  v.  Bingham,  100  Mo,  300,  the  contract  to 
grade,  we  presume,  was  in  the  usual  form  to  grade  a 
l^ublic  street  for  public  use.  The  case  admits  the  two 
facts,  that  the  grading  damaged  the  property,  and  that 
just  compensation  for  such  damaging  of  this  property 
for  public  use  had  never  been  paid  to  the  owner  or  to 
anyone.  How  can  this  contract  to  violate  the  Consti- 
tution be  valid  and  form  the  basis  of  a  lien  on  real  es- 
tate and  its  ultimate  sale  to  pay  it?  Loan  office  ''cer- 
tificates" were  involved  in  Craig  v.  Missouri,  4  Peters 
410,  et  seq.  The  tax-bill  should  have  no  more  validity 
than  the  promissory  note  given  in  that  case  for  ''loan 
office  certificates"  received  by  the  makers  of  the  note 
and  the  loan  office  certificates  endorsed  to  others.  "Is 
the  note  valid  of  which  they  form  the  consideration," 
asks  the  coprt  by  Marshall,  C.  J.,  rendering  the  major- 


Chap.  8]        Changes  in  Judicial  Rulings.  197 

ity  opinion!  [-4  Peters  loc.  eit.  -l-3(3.]  May  we  not  ask, 
"Is  this  tax-bill  valid,  founded  on  this  contract  and  do 
ing  the  work  under  it  which  work  damaged  this  land? 
The  loan  office  certificates  did  not  damage  the  person 
to  whom  they  were  given ;  they  were  simply  worthless. 
Here  the  tax-bill  is  founded  on  a  contract  which  causes 
damage  to  the  landowner— a  damage  forbidden  by  the 
Constitution.  If  the  work  had  been  hanuless— no  bene- 
fit—the note  would  have  been  void,  but  here  the  tax- 
bill  is  valid  when  the  work  for  which  it  was  given  is  a 
damage  forbidden  by  the  Constitution.  Continuing  the 
court  say : 

"It  has  been  long  settled,  that  a  promise  made  in 
consideration  of  an  act  which  is  forbidden  by  law  is 
void.  It  will  not  Idc  questioned  that  an  act  forbidden 
by  the  Constitution  of  the  United  States,  which  is  the 
supreme  law,  is  against  law.  Now  the  Constitution  for- 
bids a  State  to  'emit  bills  of  credit.'  The  loan  of  these 
certificates  is  the  very  act  which  is  forbidden.  It  is 
not  the  making  of  them  while  they  lie  in  the  loan  of- 
fices but  the  issuing  of  them,  the  putting  them  into  cir- 
culation, which  is  the  act  of  emission ;  the  act  which  is 
forbidden  by  the  Constitution.  The  consideration  of 
this  note  is  the  emiission  of  bills  of  credit  by  the  State. 
The  veiy  act  which  constitutes  the  consideration  is  the 
act  of  emitting  bills  of  credit,  in  the  mode  prescribed 
by  the  law  of  Missouri,  which  act  is  prohibited  by  the 
Constitution  of  the  United  States." 

The  consideration  of  the  note  was  harmless.  There 
was  no  consideration,  but  the  reader  must  remember 
that  these  certificates  did  not  harm  the  person  to  whom 
they  were  issued.  (The  case  is  reported  in  1  Mo.  452, 
Jackson  District,  May  term,  1824,  under  the  title  of 
Mansker  Graves  and  Simpson  v.  The  State.)  This 
contract  of  loan  and  promissory  note  did  not  hann  the 
maker  of  the  contract— the  note  in  suit.    But  the  grad- 


198  Law  of  Local  Taxation.  [Chap.  8 

ing  contract  and  its  execution  damaged  the  lot  and  if 
the  act  had  been  done  by  the  State  as  it  well  might 
have  been  done,  the  real  estate  owner  would  be  bound 
to  suffer  the  damage  forbidden  by  the  Constitution 
and,  in  addition,  he  must  pay  the  cost  of  doing  such  for- 
bidden damage  or  lose  his  property.  The  courts  imply 
a  ixtwer  to  levy  a  local  tax  to  pay  the  cost  of  a  forbid- 
den act.  Why  can't  the  Legislature  pass  any  other  act 
violating  any  other  restriction  in  the  Constitution  and 
then  sj^ecially  tax  the  injured  person  or  property  to 
pay  for  the  forbidden  act?  And  yet  this  is  done  under 
a  Constitution  which  i^rohibits  taking  or  damaging 
private  property  for  public  use;  the  property  shall  not 
be  disturbed  nor  the  title  be  divested  until  the  money 
is  paid  to  the  owner  or  into  court  for  him.  ' '  The  sec- 
tion of  the  Constitution  just  quoted  refers  to  and  is  in- 
tended to  regulate  the  exercise  of  the  right  of  eminent 
domain." 

"Is  the  proposition  to  be  maintained  that  the  Con- 
stitution meant  to  prohibit  names  and  not  things?  That 
a  very  important  act,  big  with  great  and  ruinous  mis- 
chief which  is  expressly  forbidden  by  words  most  ap- 
propriate for  its  description,  loaaj  be  performed  by  the 
substitution  of  a  name?  That  the  Constitution,  in  one 
of  its  most  important  provisions,  may  be  openly  evaded 
by  giving  a  new  name  to  an  old  thing?  We  cannot 
think  so."  [Marshall,  C.  J.,  in  Craig  v.  Missouri^  4 
Peters,  at  433.] 

''The  section  of  the  Constitution  refers  to  the 
power  of  eminent  domain,"  says  the  opinion  in  KeAtli 
V.  Bingham.  The  language  of  the  Constitution  is  very 
general:  ''Private  property  shall  not  be  damaged  for 
public  use,"  etc.  It  was  the  street  grading  which 
damaged  Bingham's  property,  not  the  tax.  The  grad- 
ing would  have  caused  the  same  damage  if  there  had 
been  no  special  tax-bill  or  general  tax.     The  tax-bill 


Chap.  8]        Changes  in  Judicial  Rulings. 


199 


did  not  increase  or  decrease  tlie  damage  done  by  the 
grading.  Tiie  tax-bill  did  not  increase  or  decrease  the 
benefit.  The  city  did  the  grading.  It  may  have  been 
done  by  days'  work,  or  the  street  force,  or  the  chain 
gang,  or  other  involuutaiy  servitude  in  punishment  for 
crime,  or  by  contract  to  the  lowest  bidder.  The  grading 
caused  the  damage.  This  injuiy  was  called,  prior  to 
1875,  "damnum  absque  injuria."  It  was  still  " d^im- 
num."  The  Missouri  Constitution  of  1875  meant  to  pro- 
hibit this  "dammim."  After  the  street  was  graded  and 
the  damage  done,  the  tax-bills  can  not  be  regarded  as 
an  apolog)^  for  the  wrong  done ;  they  cannot  wipe  away 
all  the  tears  nor  assuage  all  the  pain,  nor  can  the  tax- 
bills  convert  a  $2,750  damage,  as  ascertained  by  court 
and  juiy  (128  Mo.  23),  into  a  $300  benefit  (67  Mo. 
App.  205). 

Continuing  in  Craig  v.  Missouri,  4  Peters  433, 
Chief  Justice  Marshall,  rendering  the  opinion  of  the 
Supreme  Court  of  the  United  States,  says : 

' '  But  it  is  contended  that  though  these  certificates 
should  be  deemed  bills  of  credit,  according  to  the  com- 
mon acceptation  of  the  term,  they  are  not  so  in  the 
sense  of  the  Constitution,  because  they  are  not  made  a 
legal  tender.  The  Constitution  furnishes  no  counte- 
nance to  this  distinction.  The  prohibition  is  general.  It 
extends  to  all  bills  of  credit,  not  to  bills  of  a  particular 
description.  That  tribunal  must  be  bold  indeed,  which, 
without  the  aid  of  other  explanatory  words,  could  ven- 
ture on  this  construction.  It  is  the  less  admissible  in 
this  case,  because  the  same  clause  of  the  Constitution 
contains  a  substantive  prohibition  to  the  enactment  of 
tender  laws.  The  Constitution,  therefore,  considers 
the  emission  of  bills  of  credit  and  the  enactment  of  ten- 
der laws,  as  distinct  operations,  independent  of  each 
other,  which  may  be  separately  ]iorformed.  Both  are 
forbidden.    To  sustain  the  one,  because  it  is  not  also 


200  Law  of  Local  Taxation.  [Chap.  8 

the  other;  to  say  that  bills  of  credit  may  be  emitted  if 
they  be  not  made  a  tender  in  payment  of  debts,  is  in  ef- 
fect to  extinguish  that  distinct,  independent  prohibi- 
tion and  to  read  the  clause  as  if  it  had  been  entirely 
omitted.  We  are  not  at  liberty  to  do  this."  [Marshall, 
C.  J.,  in  Craig  v.  Missouri,  4  Peters,  at  433,  bottom,  and 
434.] 

Taking  private  property  for  luiblic  use  and  dam- 
aging private  property  for  public  use  are  two  distinct 
acts.  Both  are  equally  prohibited,  the  one  no  more  so 
than  the  other.  A  damaging  was  not  a  taking.  This 
was  the  reason  for  the  change  in  the  Constitution.  Now 
"just  compensation"  is  required  in  both  cases.  And 
"just  compensation"  is  to  be  settled  by  court  and  jury 
or  commissioners.  Tlie  questions  that  come  up  are, 
Wliat  is  just  compensation?  How  much?  Is  this  a  tak- 
ing? The  court  must  settle  that.  The  power  that  takes 
cannot  settle  that  fact  and  bind  the  property-owner  in 
court.  Is  this  a  public  use?  This  is  a  question  for  the 
court.  The  Legislature  cannot  settle  that  question  and 
bind  the  property-owner  in  court.  Is  this  property 
damaged,  and  if  so  how  much?  This  is  a  question 
for  court  and  jury  or  commissioners.  The  Legislature 
cannot  settle  it  and  bind  the  property-owner.  The  state 
constitutions  disclose  no  such  intention.  Is  this  prop- 
erty benefited,  and  if  so  how  much?  Here  are  questions 
likewise  for  court  and  jury,  certainly  not  for  the  Legis- 
lature. The  power  that  determines  damages,  deter- 
mines benefits.  If  in  passing  an  ordinance  to  grade  a 
street  the  legislative  power  determines  the  benefits, 
then  there  is  nothing  for  the  Constitution  to  operate 
upon.  In  one  case,  court  and  jury  determine  just  com- 
pensation for  damaging  at  $1000,  holding  that  there  is 
a  damage,  while  the  Legislature  determine  that  this  is 
a  $1000  benefit.  Which  shall  control?  Here  is  an  irre- 
pressible conflict.    There  can  be  no  middle  ground.    In 


Chap.  8]        Changes  in  Judicial  R.ulings. 


201 


Craig  v.  Missouri,  4  Peters,  supra,  at  43(3,  the  court  per 
Marshall,  C.  J.,  continuing,  say,  as  quoted  before : 

"The  certificates  for  which  this  note  was  given,  be- 
ing in  truth  'bills  of  credit'  in  the  sense  of  the  Consti- 
tution, we  are  brought  to  the  inquiiy :  Is  the  note  valid 
of  which  they  form  the  consideration!  It  has  been  long 
settled,  that  a  promise  made  in  consideration  of  an  act 
which  is  forbidden  by  law  is  void.  It  will  not  be  ques- 
tioned, that  an  act  forbidden  by  the  Constitution  of  the 
United  States,  which  is  the  supreme  law,  is  against 
law.  Now  the  Constitution  forbids  a  State  to  'emit 
bills  of  credit.'  The  loan  of  these  certificates  is  the 
very  act  which  is  forbidden.  It  is  not  the  making  of 
them  while  they  lie  in  the  loan  offices ;  but  the  issuing 
of  them,  the  ]iutting  them  into  circulation,  which  is  the 
act  of  emission ;  the  act  that  is  forbidden  by  the  Consti- 
tution. The  consideration  of  this  note  is  the  emission 
of  bills  of  credit  by  the  State.  The  very  act  which  con- 
stitutes the  consideration,  is  the  act  of  emitting  bills  of 
credit  in  the  mode  prescribed  by  the  law  of  Missouri ; 
which  act  is  prohibited  by  the  Constitution  of  the 
United  States.  Cases  which  we  cannot  distinguish  from 
this  in  principle,  have  been  decided  in  state  courts  of 
great  respectability^;  and  in  this  court. 

"In  the  case  of  the  Springfield  Bank  v.  Merrick  et 
al.,  14  Mass.  Rep.  322,  a  note  was  made  payable  in  cer- 
tain bills,  the  loaning  or  negotiating  of  which  was  pro- 
hibited by  statute,  inflicting  a  penalty  for  its  ^^olation. 
The  note  Avas  held  to  be  void.  Had  this  note  been  made 
in  consideration  of  these  bills,  instead  of  being  made 
payable  in  them,  it  would  not  have  been  less  repugnant 
to  the  statute ;  and  would  consequently  have  been 
equally  void. 

"In  Huni  v.  Knickerbocker,  5  Johns.  Rep.  327,  it 
was  decided  that  an  agreement  for  the  sale  of  tickets  in 
a  lotten%  not    authorized   by   the   Legislature   of   the 


202  Law  of  Local,  Taxation.  [Chap.  8 

State,  although  instituted  under  the  authority  of  the 
government  of  another  State,  is  contrary  to  the  spirit 
and  policy  of  the  law,  and  void.  The  consideration  on 
whidi  the  agreement  was  founded  being  illegal,  the 
agreement  was  void.  The  Iwoks,  both  of  Massachusetts 
and  New  York,  abound  with  cases  to  the  same  effect. 
They  turn  upon  the  question  whether  the  particular 
case  is  within  the  principle,  not  on  the  principle  itself. 
It  has  never  been  doubted,  that  a  note  given  on  a  con- 
sideration which  is  prohibited  by  law,  is  void.  Had  tlie 
issuing  or  circulation  of  certificates  of  this  or  of  any 
other  description  been  prohibited  by  a  statute  of  Mis- 
souri, could  a  suit  have  been  sustained  in  the  courts  of 
that  State,  on  a  note  given  in  consideration  of  the  pro- 
hibited certificates?  If  it  could  not,  are  the  prohibi- 
tions of  the  Constitution  to  be  held  less  sacred  than 
those  of  a  state  law?  It  had  been  determined,  inde- 
pendently of  the  acts  of  Congress  on  that  subject,  that 
sailing  under  the  license  of  an  enemy  is  illegal.  Patton 
V.  Nicholson,  3  AMieat.  204,  was  a  suit  brought  in  one  of 
the  courts  of  this  district  on  a  note  given  by  Nicholson 
to  Patton,  both  citizens  of  the  United  States,  for  a  Brit- 
ish license.  The  United  States  were  then  at  war  with 
Great  Britain;  but  the  license  was  procured  without 
any  intercourse  with  the  enemy.  The  judgment  of  the 
circuit  court  was  in  favor  of  the  defendant ;  and  the 
plaintiff  sued  out  a  writ  of  error.  The  counsel  for  the 
defendant  in  error  was  stopped,  the  court  declaring 
that  the  use  of  a  license  from  the  enemy  being  unlaw- 
ful one  citizen  had  no  right  to  purchase  from  or  sell  to 
another  such  a  license,  to  be  used  on  board  an  Ameri- 
can vessel.  The  consideration  for  which  the  note  was 
given  being  unlawful,  it  followed  of  course  that  the  note 
was  void.  A  majority  of  the  court  feels  constrained  to 
say  that  the  consideration  on  which  the  note  in  this 


Chap.  8]       Changes  in  Judicial  Rulings.  203 

ease  was  given,  is  against  the  highest  law  of  the  laud, 
and  tliat  the  note  itself  is  utterly  void." 

The  ease  of  Kansas  City  ex  rel.  Diamond  Brick 
and  Tile  Co.  v.  Shroeder  et  al,  decided  in  the  Supreme 
Court  of  Missouri  on  March  29,  1906,  rehearing  denied 
May  22,  1906,  is  another  case,  showing  the  revolution- 
ary tendencies  of  modern  judicial  opinions  on  ques- 
tions of  local  taxation.  [196  Mo.  281;  Southwestern 
Reporter,  vol.  93,  page  405,  et  seq.]  The  suit  is  against 
the  contractor  and  sureties  on  his  bond  given  to  pay 
for  labor  and  materials  used  under  his  contract  with 
Kansas  City.  The  contention  of  the  sureties  was  that 
the  ordinance  was  void,  as  also  the  contract  between 
the  city  and  contractor,  and  also  the  contract  with  the 
sureties.  The  contract  comes  up  under  section  12,  ar- 
ticle 17  City  Charter  of  Kansas  City,  pages  234-5, 
which  is  in  these  words : 

*'Sec.  12.  Public  improvements— Contracts — Loiv^ 
est  and  best  bidder— Repair  by  day's  work.— AW  city 
improvements  of  whatever  kind  or  character,  including 
the  erection  of  all  public  buildings,  made  or  to  l)e  erect- 
ed at  the  expense  of  the  city,  and  including  all  work  to 
be  paid  for  in  special  tax-bills,  except  as  in  this  char- 
ter otherw^ise  provided,  shall  be  let  by  contract  to  the 
lowest  and  best  bidder  as  shall  be  prescribed  by  ordi- 
nance ;  provided,  however,  that  nothing  in  this  section 
shall  be  so  construed  as  to  prevent  repair  by  day's 
work  of  streets,  alleys  and  other  public  places,  curbing, 
sewers,  culverts,  buildings  or  other  city  property,  so 
far  as  may  be  necessary,  under  the  direction  of  the 
board  of  public  works." 

All  city  improvements  (including  work  to  be  paid 
in  tax  bills)  shall  be  let  by  contract  to  the  lowest  and 
best  bidder.  Other  methods  are  prohibited  ''Wherefore 
every-  statute  that  limits  a  thing  to  be  done  in  a  parti- 
cular form  although  it  be  spoken  in  the  affirmative,  in- 


20J:  Law  of  Local,  Taxation.  [Chap.  8 

eludes  in  itself  a  negative,  viz.,  that  it  shall  not  be  done 
otherwise."  [Stradlimg  v.  Morgan,  Plowden  198b,  at 
206a,  near  bottom  (A.  D.  1560).] 

All  city  improvements  shall  be  let  by  contract  to 
the  lowest  and  best  bidder.  Here  is  an  implied  nega- 
tive that  the  public  improvements  shall  not  be  let 
otherwise  than,  first,  by  contract,  and  second,  to  the 
lowest  and  best  bidder.  Other  methods  are  prohibited. 
Open  competition  is  the  rule  enjoined  by  this  statute. 
Monopoly  is  prohibited.  What  is  implied  in  a  statute 
is  as  much  a  part  of  it  as  what  is  expressed.  Is  ' '  form ' ' 
sacred  and  ''substance"  to  be  disregarded  by  the  legis- 
lative i^ower  at  its  mere  will  and  pleasure  ? 

In  Kansas  City  v.  Shroeder  (S.  W.  Rep.,  vol.  93, 
No.  2,  page  405),  the  ordinance  provided  that  the  street 
should  be  paved  with  "Diamond  vitrified  paving 
brick;"  one  corporation  owned  exclusively  the  mater- 
ial (it  was  not  a  patented  material  where  the  law 
created  the  monopoly).  The  ordinance  is  so  framed  as 
to  exclude  competition  on  the  material  brick.  It  may 
add  a  like  restriction  as  to  sand  and  cement.  It  may  on 
the  same  principle  provide  that  one  class  of  workmen 
shall  be  employed  and  all  others  excluded.  In  short, 
the  ordinance  may  totally  nullify  the  charter  provision 
as  to  letting  work  to  the  lowest  and  best  bidder  by  so 
providing  in  the  ordinance  that  one  man  only  can  fur- 
nish part  or  all  of  the  material.  The  city  charter,  the 
statute  law,  requires  this  work  to  be  let  to  the  lowest 
and  best  bidder.  May  a  city  ordinance  dispense  with 
this  necessary  requirement  of  the  city  charter  and  still 
be  held  valid  by  the  courts  1  Can  the  city  council  do  in- 
directly that  which  it  is  prohibited  from  doing  di- 
rectly? 

In  City  of  St.  Louis  v.  Davidson,  102  Mo.  149,  the 
act  done  was  not  prohibited ;  it  was  a  mere  want  of  au- 
thority.   Say  the  court  at  page  153 : 


Chap.  8]       Changes  in  Judicial  Rulings.  205 

**It  will  have  been  obsen^ed  that  the  charter  of  the 
city  while  it  does  not  pennit,  yet  it  does  not  prohibit 
the  making  of  such  a  contract  as  the  one  before  us,  so 
that  although  the  contract  is  ultra  vires  the  corpora- 
tion, yet  it  is  not  illegal  because  not  prohibited  by  the 
charter.  This  is  a  distinction  clearly  marked  out  by 
the  authorities.  [2  Dillon  Mun.  Corp.  (4  Ed.),  sec. 
936;  Macdonald  v.  Mayor,  68  N.  Y.  23;  Bigelow  on  Es- 
top. (5  Ed.),  685.]" 

A.  engages  B.  to  steal  horses  and  bring  them  to 
him  to  dispose  of,  and  A.  promises  to  pay  half  of  what 
is  realized  from  such  sales  of  such  stolen  horses.  Steal- 
ing horses  is  prohibited.  Is  the  contract  to  steal  valid? 
The  contract  to  steal  is  just  as  much  prohibited  as  the 
stealing.  A  contract  to  murder  is  just  as  much  prohib- 
ited as  murder.  In  either  case  can  either  party  to  the 
contract  to  do  the  prohibited  thing,  have  specific  exe- 
cution in  equity  or  maintain  a  suit  at  law  for  damages  ? 

In  Kansas  City  v.  Shroeder,  196  Mo.  281,  S.  W. 
E-ep.  at  409,  the  Supreme  Court  of  Missouri  say : 

''The  contract  between  the  materialmen  and  the 
contractor  is  independent  of  the  contract  between  the 
city  and  the  contractor.  Therefore  the  relief  to  which 
the  materialmen  are  entitled  does  not  depend  upon  the 
contract  between  the  city  and  the  contractor,  but  upon 
that  hetiveen  them  and  the  contractor.  The  fact,  there- 
fore, that  the  contract  between  the  city  and  the  contrac- 
tor may  be  invalid,  can  have  no  effect  upon  the  contract 
between  the  materialmen  and  the  contractor. ' ' 

The  two  contracts  are  not  independent.  One  is 
part  and  parcel  of  the  other.  The  contract  between  the 
city  and  the  contractor  requires  material  and  labor. 
The  materialman  and  the  contractor  have  a  contract 
for  the  material  to  be  used  by  the  city  contractor  in  do- 
ing the  city  work.  This  is  a  suit  on  the  contractor's 
bond  to  pay  for  the  brick  used  and  required  under  this 


206  Law  of  Local  Taxation.  [Chap.  8 

ordinance  and  contract  without  competition  in  viola- 
tion of  the  statute,  the  city  charter.  This  is  the  very 
thing  the  charter  prohibited.  If  the  contract  had  been 
a  mere  sale  of  brick  by  the  owner  to  the  contractor, 
without  any  reference  to  the  purpose  for  which  the 
brick  are  to  be  used,  the  case  would  be  ditferent.  There 
is  no  prohibition  on  the  sale  of  brick  generally. 

Here  Kansas  City  violated  the  city  charter.  All 
public  improvements  must  be  let  by  contract  to  the  low- 
est and  best  bidder.  The  ordinance  nullifies  this  pro- 
vision of  the  charter.  The  board  of  public  works  and 
the  city  engineer  in  advertising  that  this  work  will  be 
let  to  the  lowest  and  best  bidder,  cannot  say  to  pro- 
posed bidders  that  this  work  shall  be  done  with  Dia- 
mond vitrified  brick  or  any  other  brick  just  as  good. 
The  board  of  public  works  and  the  city  engineer  could 
not  under  this  ordinance  advertise  for  bids  or  let  a  con- 
tract to  be  executed  by  the  use  of  Smith's  brick,  even 
though  a  better  brick  for  paving  purposes.  They  had  no 
more  right  to  advertise  for  bids  and  let  a  contract  for 
this  work  to  be  done  with  any  brick  just  as  good  as  Dia- 
mond vitrified  brick  (or  better)  than  they  had  to  adver- 
tise to  let  a  contract  to  pave  the  street  with  asphalt  or 
sandstone  blocks.  If  they  could  advertise  for  letting  a 
contract  to  do  this  work  with  Smith's  brick  because  it 
is  a  better  material  for  paving  than  Diamond  brick 
they  might  let  a  contract  to  do  the  work  with  asphalt, 
a  better  material  than  either  kind  of  brick,  or  sand- 
stone blocks,  which  are  better  than  Diamond  brick. 
AVhen  the  charter  requires  an  advertisement  for  bids  to 
do  public  work  to  be  let  to  the  lowest  and  best  bidder, 
it  aims  at  substance  not  form. 

If  the  city  engineer  and  board  of  public  works  ad- 
vertise for  bids  for  this  work  to  be  done  with  Diamond 
vitrified  brick,  then  in  excluding  other  brick  just  as 
good  they  violate  the  city  charter.    They  have  in  sub- 


Chap.  8]       Changes  in  Judicial  Rulings.  207 

stance,  though  not  in  form,  dispensed  with  this  require- 
ment of  the  charter.  If  they  accept  other  brick  just  as 
good  or  better,  or  if  they  accept  asphalt  or  sandstone 
blocks,  they  do  not  follow  the  ordinance.  They  can  not 
dispense  with  any  substantial  reciuirement  of  the  char- 
ter or  ordinance;  if  they  do  their  act  is  wanting  in  au- 
thority of  law. 

A  city  ordinance  to  pave  can  not  be  dispensed 
with.  In  general,  that  ordinance  must  designate  the 
material.  The  reader  myist  not  forget  that  this  suit  is 
not  on  the  contract  of  sale  of  the  brick  or  other  mater- 
ial. It  is  a  suit  against  the  contractor  and  the  sureties 
on  his  bond  to  i)ay  for  the  labor  and  material  required 
and  used  imder  this  contract  authorized  by  this  ordi- 
nance. In  general,  a  bond  is  good  if  it  requires  the  ob- 
ligors to  comply  with  the  law.  But  here  there  can  be 
no  recovery  unless  there  is  a  violation  of  law.  Unless 
the  contract  departs  from  the  ordinance  there  can  be 
no  recover>\  The  law,  the  city  charter,  requires  com- 
petition and  prohibits  monopoly.  The  ordinance  au- 
thorizes and  establishes  monopoly  for  the  whole  work, 
labor  and  material  and  destroys  all  competition. 

This  bond  is  conditioned  that  the  contractor  shall 
pay  for  all  labor  and  material  required  and  used  in  the 
city  contract.  If  anything  is  left  out  of  this  contract  — 
this  bond— what  is  it?  He  buys  all  the  material  and 
pays  for  it.  He  employs  all  labor  and  pays  for  it. 
This  means  necessary  labor  and  necessary  mater- 
ial. The  court  say  the  contract  for  the  material 
is  an  independent  contract,  and  the  contract  for  the 
labor  is  an  independent  contract.  The  sale  or  pur- 
chase of  brick  is  an  independent  contract,  but  when  the 
seller  accepts  this  bond  and  sues  on  it,  it  is  no  longer  an 
independent  contract.  He  can  not  recover  on  this  bond 
unless  the  brick  were  sold  to  be  used  and  were  used  un- 
der the  city  paving  contract  to  pave  the  street. 


208  Law  of  Local  Taxation.  [Cliap.  8 

The  statute  does  not  contemplate  bond  and  secur- 
ity separately  for  each  item  of  labor.  There  is  no  such 
thing  authorized  as  a  separate  contract  for  the  sand, 
one  for  the  lime,  one  for  the  cement,  one  for  the  brick 
and  one  for  the  labor.  The  contract  is  one  entire  con^ 
tract  to  do  all  the  work  and  furnish  all  the  labor  and 
material.  Owners  of  brick,  other  than  vitrified  paving 
brick,  can  not  compete  under  such  an  ordinance. 
Neither  can  the  owners  of  sand  or  liine  or  cement. 
Neither  can  the  day  laborer.  One  man,  the  contractor, 
the  monopolist,  must  furnish  all  these.  The  ordinance 
authorizes  mjonopoly.  It  prohibits  competition.  It  au- 
thorizes and  requires  just  what  the  charter  prohibits. 
The  brickmaker  under  this  ordinance  dictates  the  price 
not  only  of  the  brick,  but  also  of  all  other  material  and 
all  labor.  We  are  speaking  of  the  existence  of  the 
power  and  not  of  the  extent  to  which  it  may  be  exer- 
cised. 

It  may  be  said  that  nearly  all  ordinances  fix  a 
price  beyond  which  the  contractor  can  not  go,  as  for  ex- 
ample, one  dollar  and  fifty  cents  per  square  yard  for 
brick  paving.  He  will  always  get  the  extreme  limit, 
one  dollar  and  fifty  cents  per  square  yard.  But  a 
power  to  fix  a  limit  implies  a  power  not  to  fix  it.  Leg- 
islation can  not  be  coerced.  There  is  no  difPeremce  in 
principle  in  limiting  the  cost  of  the  work  to  one  dollar 
and  fifty  cents  and  refusing  any  limit  at  all. 

If  the  common  council  of  any  city  may  violate  the 
charter  in  a  small  degree,  and  have  their  acts  held  valid 
in  the  courts,  they  may  violate  the  charter  in  a  large 
degree  and  have  the  courts  hold  their  acts  valid.  The 
imperative  command  of  the  law  (sec,  12,  City  Charter, 
art.  17,  pp.  234-5),  is,  that  work  of  this  character  ''shall 
be  let  by  contract  to  the  lowest  and  best  bidder.' '  Can 
an  ordinance  provide, that  this  work  shall  be  done  with- 
out compliance  with  this  provision  1  Can  the  ordinance 


Chap.  8]        Changes  in  Judicial.  Rulings.  209 

in  tenns  dispense  with  comx>liance  with  this  provision? 
Sliall  this  imperative  command  of  the  law  be  obeyed  by- 
city  officials,  or  set  aside,  annulled  and  disregarded  at 
their  mere  will  and  oaprice?  If  the  city  officers  can  not 
dispense  with  this  requirement  directly,  they  can  not 
do  so  indirectly. 

Why  does  the  city  charter  (art.  2,  sec.  5,  p.  16,  City 
Charter  of  Kansas  City)  require  mem]>ers  of  the  com- 
mon council  to  take  an  oath  to  support  the  Constitution 
of  the  United  States  and  of  this  State  and  "the  provis- 
ions of  this  charter/'  if  they  may  disregard  this  provis- 
ion or  any  other  at  their  mere  ivill  and  pleasure?  Mo- 
nopoly is  just  as  much  prohibited  as  train  robbeiy. 

This  case  (196  Mo.  281)  makes  a  distinction  be- 
tween cases  idtra  vires  and  those  prohibited  by  law, 
and  it  is  put  among  cases  idtra  vires.  A  contract  pro- 
hibited by  law  is  certainly  ultra  vires.  The  law  will 
not  suppose  (except  perhaps  in  case  of  special  tax- 
bills)  that  a  corporation  has  power  to  do  that  which  the 
law  forbids  it  to  do.  The  forbidden  act  ought  to  be 
held  void  in  law.  It  should  not  fonn  the  basis  for  any 
action  under  it  by  any  one  who  comes  under  it  and  acts 
under  its  pretended  authority.  Its  only  support  is  the 
"divine  right  of  kings." 

If  the  common  council  of  any  city  (Kansas  City, 
for  instance),  should  pass  an  ordinance  to  crack  all  the 
bank  safes  in  Kansas  City  and  take  all  the  money  there- 
in to  pay  the  city  debts  and  to  pay  for  the  parks  and 
boulevards,  this  ordinance  would  certainly  be  ultra 
vires;  the  act  to  be  done  would  be  nltra  vires.  But  the 
act  would  be  one  prohibited  by  law.  An  ordinance  to 
rob  the  railroads  would  be  equally  ultra  vires.  These 
acts  would  also  be  prohibited  by  law.  An  innocent  act 
may  be  ultra  vires.  A  criminal  act,  an  act  forbidden  by 
law,  is  always  ultra  vires.  Cracking  bank  safes  by  ni- 
tro-glycerine,  gun  cotton,  city  ordinances,  or  other  vio- 

14 


210  Law  of  Local  Taxation.  [Chap.  8 

lent  explosives ;  train  robberies  and  monopolies  are  all 
ultra  vires,  but  they  are  also  forbidden  by  law. 

Now,  the  city  by  ordinance  makes  a  contract  to 
crack  the  bank  safes,  to  rob  the  trains,  and  to  grant 
paving  monopolies.  The  contractor  in  each  case  makes 
a  contract  with  the  city  to  furnish  all  the  material  and 
do  all  the  work  and  labor  necessary  to  complete  in  a 
good  workmanlike  manner  the  work  of  cracking  the 
bank  safes  and  robbing  the  trains  and  enforcing  the 
monopoly.  This  brick  monopoly,  this  train  robbery, 
this  cracking  of  the  bank  safes,  are  all  prohibited  by 
law  and  they  are  all  ^iltra  vires.  (Perhaps,  after  all, 
the  council  might  adjudge  all  these  forbidden  acts  to  be 
really  benefits,  and  no  tribunal  on  earth  could  reverse 
the  decision.) 

Under  article  9,  section  20,  pages  160,  161,  Kansas 
City  Charter,  the  contractor's  contract  to  crack  the 
bank  safes,  to  rob  the  train,  and  to  establish  the  brick 
monopoly,  must  contain  a  clause  that  the  contractor 
will  pay  for  all  labor  and  materials  used  in  cracking 
the  safes,  robbing  the  trains,  and  in  enforcing  the  brick 
monopoly.  The  contractor  must  give  ample  security 
that  he  will  well  and  faithfully  violate  the  Kansas  City 
Charter  according  to  the  ordinance  and  the  directions 
of  the  city  engineer  and  that  he  will  pay  off  all  the 
hands  engaged  in  robbing  the  train,,  in  cracking  the 
bank  safes,  or  in  supporting  this  monopoly.  The  men 
who  furnish  or  do  the  labor,  the  men  who  furnish  the 
material,  must  know  of  this  violation  of  law,  for  they 
sue  on  the  surety  contract  which  alone  gives  the  right 
against  the  sureties. 

But  knowledge  of  the  unlawful  purpose  is  not  all. 
If  the  material  is  not  used  in  the  street;  if  the  material 
is  not  used  in  cracking  the  safe  or  robbing  the  train, 
there  can  be  no  recovery  under  the  bond.  Before  a  re- 
covery can  be  had  the  law  must  be  violated.    We  have 


Chap.  8]       Changes  in  Judicial.  Rulings.  211 

no  innocent  man  holdin"^  fleet  horses  while  the  princi- 
pal rohs  the  ti-nin,  for  unless  he  thus  renders  this  as- 
sistance in  robbing  the  train  he  can  not  recover  on  the 
bond.  Monopolies  are  just  as  much  prohibited  as  train- 
robbing  or  safe-cracking. 

Generally,  a  party  to  a  contract  which  is  against 
law  or  in  violation  of  law  cannot  recover  on  that  con- 
tract. Here  he  cannot  recover  unless  he  has  by  his  con- 
tract violated  law  and  is  either  a  monopolist  or  his  as- 
sistant. Generally,  a  plaintiff  must  come  into  court 
with  clean  hands,  but  if  he  come  into  court  with  clean 
hands  he  is  thrust  aside  by  the  cold  hand  of  monopoly. 
Unless  he  is  a  monopolist  or  his  assistant  he  cannot  re- 
cover on  this  bond.  A  sale  of  personal  property  is  valid 
even  when  the  property  is  to  be  used  in  a  violation  of 
law.  But  if  he  knows  of  the  intended  violation  of  law 
and  concurs  in  it  and  approves  it  the  contract  is  void. 
The  men  who  sold  the  sand ;  the  men  who  sold  the 
crushed  rock,  cannot  recover  unless  they  help  the  brick 
monopolist  on  his  brick  monopoly.  A  mere  sale  of  sand 
is  insufficient;  a  mere  sale  of  crushed  rock  is  insuffi- 
cient. Both  sales  nmst  be  made  to  help  the  monopolist, 
the  brick  monopolist.  The  materials  so  sold  must  be 
so  used;  if  not  so  used  there  can  be  recovery  on  the 
bond.  Unless  the  materialmen  violate  the  law  there 
can  be  no  recoveiy. 

The  selling  of  crushed  rock  is  lawful ;  the  selling  of 
sand  is  lawful. 

In  St.  Louis  Fair  Association  v.  Carmody,  151 
Mo.  566,  at  574,  the  court  say : 

**  A  scheme  lawful  in  itself  cannot  be  made  a  cover 
for  one  that  is  unlawful.  The  plaintiff's  race  track 
and  grand  stand  were  lawful  to  be  kept,  but  when  it 
adds  to  those  the  gambling  booth,  and  runs  them  to- 
gether, and  then  makes  a  contract  that  is  appurtenant 
to  either  and  appurtenant  to  both,  courts  will  not  en- 


-12  Law  of  Local  Taxation.  [Chap.  8 

tertain  it  merely  because  in  its  application  it  was  not 
limited  entirely  to  the  unlawful  puipose. 

' '  If  the  house  in  question  had  been  opened  and 
used  for  a  double  purpose,  viz.,  as  an  honest  social  club 
for  those  who  do  not  desire  to  play  as  well  as  for  the 
pui-pose  of  gaming  for  those  who  did,  it  would  not  the 
less  be  a  house  opened  and  kept  for  the  purpose  of 
gaming."  [Jenlis  v.  Turpin,  13  Q.  B.  Div.  Law  Rep. 
505.  See,  also,  White  v.  Wilson's  Admr.  (Ky.),  88  S. 
W.  Rep.  495.]" 

'^If  a  law  actually  violates  the  Constitution,  its 
nullity  must  be  declared,  notwithstanding  there  may 
have  been  no  intent  in  the  makers  of  the  law  to  violate 
that  instrument.  The  constitutionality  of  a  law  cannot 
depend  upon  the  motives  of  its  makers."  {State  v. 
North  et  al.,  27  Mo.  1.  c.  479.]  The  same  rule  ought  to 
apply  to  the  validity  of  an  ordinance  as  against  a  city 
charter. 

"It  is  asserted  by  defendants  that  the  ordinance 
directing  the  improvement,  and  the  contract  therefor, 
were  both  illegal  and  void,  and,  being  so,  cannot  au- 
thorize a  recoverv^  by  the  interveners.  The  force  and 
efficacy  of  this  objection  depend  upon  the  determina- 
tion of  the  question  as  to  whether  the  defendants  are  in 
a  position  to  avail  themselves  thereof.  It  appears  from 
the  evidence  that  the  work  was  completed,  and  tax-bills 
in  payment  thereof  issued  and  turned  over  to  the  con^- 
tractor,  all  in  accordance  with  the  terms  of  the  con- 
tract. Under  these  circumstances  it  would  seem  that 
defendants  are  in  no  position  to  say  that  the  contract 
and  ordinance  under  which  the  work  was  done  were 
void,  and  thus  escape  the  obligation  to  pay  for  the  ma- 
terial used  by  the  contractor  in  the  construction  of  the 
work.  The  property-owners  against  whom  the  tax-bills 
were  issued  are  not  here  complaining,  nor  will  their 
rights  be  in  any  way  affected  by  this  suit,  whatever  the 


Cliap.  8]       Changes  in  Judicial  Rulings.  213 

result  may  be.  Tlie  controversy  is  between  the  con- 
tractor and  the  sureties  upon  liis  contract  bond  upon 
the  one  side,  and  the  companies  that  furnished  mater- 
ial for  the  work  upon  the  other."  [196  Mo.  3(K)-1.] 

The  o])inion  of  the  court  raises  the  question  as  to 
whether  defendants  "Are  in  a  position  to  avail  them- 
selves" of  this  defense.  This  position  is  that  there  is 
a  defense.  This  o])inion  assumes  that  monopoly  is  pro- 
hibited and  that  defendants  have  a  defense  on  the 
ground  of  this  ))i'ohibited  monopoly.  This  o])inion  as- 
sumes that  "The  contract  and  ordinance  under  which 
the  work  was  done  were  void,"  but  defendants  cannot 
avail  themselves  of  this  defense— this  fact  that  the  or- 
dinance was  void — this  fact  that  the  contract  was  void. 
If  the  contract  is  void— if  the  ordinance  is  void — it  will 
require  an  embarrassing  strain'  on  the  judicial  mind  to 
hold  that  the  tax-bills  issued  under  this  void  ordinance 
and  this  void  contract  are  valid.  The  imperative  com- 
mand of  the  law,  that  this  work  ''shall  be  let  by  con- 
tract to  the  lowest  and  best  bidder/'  has  been  disre- 
garded by  this  ordinance  and  this  contract.  The  con- 
tractor and  his  sureties  cannot  avail  themselves  of  this 
defense.  The  monopolist  was  the  brick  manufacturer. 
The  materialmen  the  laborers  and  the  contractor  were 
the  assistant  monopolists.  This  monopolist  was  power- 
less to  enforce  his  monopoly  without  these  assistants. 
The  matenalmen  can  sell  their  material,  the  laboring 
men  may  do  their  labor,  but  unless  all  this  is  done  to 
further  and  assist  this  monopolist  in  his  monopoly, 
there  can  be  no  recovery  on  the  bond. 

The  contractor  did  the  work  and  funiished  the  ma- 
terial and  received  in  payment,  not  cash,  but  worthless 
tax-bills.  The  property-owners  will  be  in  a  position  to 
say  that  the  contract  and  ordinance  are  void  unless  es- 
topped by  something  not  appearing  in  the  case  or  the 
record.    The  contract  of  the  materialmen  and  laborers 


214  Law  of  Local  Taxation.  [Chap.  8 

was  for  pay  in  cash,  not  in  tax-bills  admitted  to  be  in- 
valid. If  suit  had  been  brought  on  all  these  tax-bills 
and  the  property-owners  defend  the  suits  successfully, 
could  the  materialmen  still  recover  under  a  contract 
and  ordinance  which  was  in  open  defiance  of  this  plain 
injunction  of  this  statute  law  that  this  work,  this  whole 
work,  including  labor  and  material,  "shall  he  let  by 
contract  to  the  lowest  and  best  bidder^''  Has  the  con- 
tractor derived  benefits  under  his  contract  when  he  has 
nothing  but  worthless  tax-bills  ? 

It  is  true  as  a  principle  of  law  that  a  person  cannot 
accept  benefits  under  a  contract  and  refuse  its  burdens. 
But  here  there  were  no  benefits.  It  is  known  as  a  mat- 
ter of  law  that  these  supposed  benefits,  like  the  apples 
of  Sodom,  will  in  the  contractor's  hands  turn  to  dust 
and  ashes. 

The  Kansas  City  Court  of  Appeals  has  followed 
Keith  V.  Bingham,  100  Mo.  300,  in  McQuiddy  v.  Smith, 
67  Mo.  App.  205,  et  seq.  This  case  is  a  suit  on  a  tax- 
bill  issued  for  grading  Locust  street  in  Kansas  City 
from  Twenty-third  street  to  Twenty-sixth  street.  The 
ordinance  was  passed  in  1890,  fifteen  years  after  the 
adoption  of  the  Constitution  of  Missouri  of  1875.  The 
t?x-bill  sued  on  in  this  case  was  a  reissue,  the  original 
having  been  held  invalid  because  the  wrong  officer  com- 
puted the  cost  of  the  work.  [^McQuiddy  v.  Vineyard,  60 
Mo.  App.  610.]  The  case  was  decided  in  the  Kansas 
City  Court  of  Appeals  at  the  March  term,  1896.  Mrs. 
Smith  was  the  owner  of  the  land,  against  which  the 
tax-bill  was  issued,  from  the  time  the  ordinance  to 
grade  the  street  was  passed  in  1890  till  the  final  decis- 
ion of  the  case  in  the  Kansas  City  Court  of  Appeals  in 
March,  1896. 

Section  21  of  article  2  of  the  Bill  of  Rights  of  the 
Missouri  Constitution,  adopted  in  1875,  is  thus: 

"Section  21.    Private  property  shall  not  be  taken 


Clia}).  8]       Changes  in  Jl'dicial  Rl'ijngs.  215 

or  damaged  for  i>uljlic  use  without  just  compensation. 
Such  compensation  [for  taking  or  damaging]  shall  be 
ascertained  by  a  jur>^  or  board  of  commissioners  of  not 
less  than  tliree  freeholders,  in  such  manner  as  may  be 
prescribed  by  hiw;  and  until  the  same  [  i.  e.,  just  com- 
pensation for  either  taking  or  damaging]  shall  be  paid 
to  the  owner  or  into  court  for  the  owner,  the  property 
shall  not  be  disturbed  or  the  i)ro])riotar\'  rights  of  the 
owner  therein  divested.  The  fee  of  huid  taken  for  rail- 
road tracks  without  the  consent  of  tlie  owner  thereof 
shall  remain  in  such  owner,  subject  to  the  use  for  which 
it  is  taken." 

''Just  Compensation"  is  required  in  two  cases, 
first  for  taking  private  property,  and  second,  for  dam- 
aging private  property.  Article  7,  Kansas  City  Charter, 
1889,  ]n'ovides  for  taldng  ]irivate  pro])erty,  or  condem- 
nation cases  as  generally  understood.  It  pro\'ides  for 
taking  land  for  streets,  alleys,  boulevards,  parks,  etc., 
where  part  of  the  land  may  be  taken  and  part  left  and 
the  part  left  may  be  incddentally  damaged.  Article  8 
provides  for  grading  streets,  alleys,  etc.,  where  lots 
may  be  seriously  injured,  and  yet  there  may  be  no 
"taking''  within  the  meaning  of  the  Bill  of  Rights  as 
previously  written  here  and  in  the  United  States. 

Formerly  these  were  cases  of  " dammtm  absque  m- 
juriu"  as  in  C'lti/  of  St.  Louis  v.  Peter  Gurno,  12  Mo. 
414,  et  seq.,  and  Taylor  v.  St.  Louis,  14  Mo.  20  et  seq., 
and  cases  cited  and  commented  on  by  the  court.  In 
rendenng  the  opinion  in  the  case  in  hand,  at  page  208, 
the  court  say : 

"In  the  ]:) resent  action,  the  sole  defense  is,  that 
though  these  defendants  were  the  owners  of  the  prop- 
erty at  the  date  of  the  ordinance  providing  for  the 
work,  and  at  all  times  since,  yet  they  had  no  notice  and 
were  not  made  parties  to  the  proceeding  in  the  circuit 
court  for   assessing   damages    and    benefits    resulting 


216  L-^w  OF  Local  Taxation.  [Cliap.  8 

from  grading  the  street,  as  was  then  provided  by  ar- 
ticle 8  of  the  Kansas  City  charter.  The  circuit  court 
held  this  no  defense,  and  from  a  judgment  enforcing 
the  tax-bill,  defendants  appealed. 

"In  this  connection  it  may  be  well  to  state  that,  al- 
though the  defendants  were  not  parties  to  the  proceed- 
ings in  the  circuit  court  to  assess  damages  and  benefits 
for  the  proposed  change  of  grade,  yet,  after  the  work 
was  done  and  the  change  effected,  they  sued  the  city  in 
a  common-law  action  for  damages  and  recovered  the 
sum  of  $2,750,  which  was  paid.  In  our  opinion,  the 
judgment  of  the  circuit  court  was  correct.  It  was  not 
intended  by  the  provisions  of  the  charter  of  1889  to 
make  the  assessment  of  damages  and  benefits  for  grad- 
ing a  street  a  condition  precedent  to  the  authority  of 
the  city  to  order  the  improvement  and  assess  the  cost 
thereof  to  the  abutting  property.  The  purpose  of  ar- 
ticle 8  was  to  ])repare  a  way  by  which  the  city  could 
have  settled  beforehand  the  damages  to  be  incurred  by 
the  proposed  improvement,  so  that  it  might  be  advised 
in  advance  whether  or  not  it  was  proper,  and  for  the 
public  good,  to  prosecute  the  work.  Section  15  author- 
izes the  city — even  after  verdict  and  judgment  fixing 
damages  and  benefits  have  been  rendered— to  abandon 
the  improvement  and  repeal  the  ordinance.  If,  how- 
ever, the  city  should  proceed  with  the  work  without 
having  these  damages  assessed,  then  it  is  clear  that  the 
property-owner  may  resort  to  the  courts  and  there  se- 
cure his  damages  by  an  ordinary  action,  as  defendants 
seem  to  have  done  in  this  instance.  [The  owner  could 
likewise  sue  the  horse  thief  for  his  horse.]  But 
the  failure  to  have  these  damages  assessed  in  advance 
of  the  work  ought  not  to  deprive  the  contractor  of  his 
right  of  compensation.  This  is  a  matter  of  which  he 
has  no  control,  and  is  a  proceeding  to  which  he  is  not  a 
party." 


Cliap.  8]       Changes  in  Judicial  Rulings.  217 

This  decision  merely  interprets  the  Kansas  City 
Charter  as  a  statute.  This  decision  does  not  attempt 
to  detennine  the  constitutional  validity  of  this  statute, 
the  Kansas  City  Charter.  Under  article  6,  section  12, 
Constitution  of  Missouri,  appeals  lie  to  the  Supreme 
Court  '*in  cases  involving  the  construction  of  the  Con- 
stitution of  the  United  States  or  of  this  State."  By 
amendments  adopted  in  1884  appeals  and  writs  of  er- 
ror go  from  the  circuit  court  direct  to  the  Supreme 
Court  in  all  cases  where  appeals  and  error  were  to  St. 
Louis  and  Kansas  City  Courts  of  Appeals.  So  that 
now,  and  at  the  time  the  case  under  consideration  was 
decided  in  March,  1896,  the  Sui)reme  Court  has  exclu- 
sive jurisdiction  in  all  cases  involving  the  construction 
of  the  Constitution  of  the  United  States  or  of  this 
State. 

The  court  then  obsen^e  that  the  city  has  complete 
control  over  its  streets ;  it  can  grade  and  regrade,  only 
it  is  subjected  to  liability  for  damages  if  damages  re- 
sult.   The  court  finally  conclude : 

"So,  then,  it  is  no  defense  to  this  tax-bill  that  the 
property  of  these  defendants,  may,  in  fact,  have  been 
injured  rather  than  benefited  by  the  street  grading." 
The  same  reasoning  would  apply  to  the  taking  as  well 
as  damaging. 

Moherhj  v.  Hogan,  131  Mo.  19,  et  seq.,  is  a  suit  to 
enforce,  against  abutting  property,  a  taji-bill  for  street 
paving.    The  court  say,  page  22,  bottom : 

*'At  the  trial  the  court  refused  to  allow  defend- 
ant's offer  of  testimony  to  show  that  the  lot  was  not 
benefited  by  the  improvement,  but  that  its  value  was  de- 
stroyed thereby." 

**The  constitutional  objections  to  the  tax-bill  are 
groundless,  in  view  of  a  number  of  decisions,  extending 
through  many  years  of  the  history  of  this  court.  It  is 
established  law  that  tax-bills  of  the  sort  in  question  are 


218  Law  of  Local  Taxation.  [Cliap.  8 

sustainable  as  an  exertion  of  the  taxing  power.  [Gar- 
rett V.  St.  Louis  (1857),  25  Mo.  505;  Palmyra  v.  Mor- 
ton (1857),  25  Mo.  593;  Farrer  v.  St.  Louis,  80  Mo.  379'; 
St.  Joseph  to  use  v.  Owen  (1892),  110  Mo.  445,  19  S.  W. 
Rep.  713.]  The  authority  invested  with  the  power  of 
taxation  for  such  purposes  determines  the  occasion  for 
the  tax,  and  levies  it  upon  the  property  subject  to  the 
tax.  Where  that  is  regularly  done,  in  accordance  with 
the  terms  of  the  law  conferring  the  power,  the  pro- 
priety of  the  tax  in  the  particular  instance  is  not  a  ju- 
dicial question,  and  it  is  not  reviewable  by  the  courts  in 
the  manner  here  attempted.  [McCormack  v.  Pat  chin 
{1S73),  d3  Mo.  33',  Seibert  V.  Tifany  (1879),  8  Mo. 
App.  33;  Estes  v.  Owen  (1886),  90  Mo.  113,  2  S.  W. 
Rep.  133;  St.  Louis  v.  Eanhvn  (1888),  96  Mo.  497,  9  S. 
W.  Rep.  910.] 

"The  trial  court  committed  no  error  in  excluding 
the  defendant's  evidence  offered." 

Under  the  particular  circumstances  named,  "The 
propriety  of  the  tax  in  the  particular  instance  is  not  a 
judicial  question  and  it  is  not  reviewable  by  the  courts 
in  the  manner  here  attempted."  In  what  manner  is 
this  question  reviewable  by  the  courts  ?  How  and  when 
do  the  courts  get  authority  to  review  a  question  not  ju- 
dicial? In  what  cases  can  the  courts  perform  the  func- 
tions of  the  Legislature?  The  question  stated  cannot 
be  reviewed  by  the  courts  at  all. 

Garrett  v.  St.  Louis  (1857),  25  Mo.  505,  referred  to 
in  the  case  now  under  consideration,  establishes  the 
doctrine  that  if  the  jury  are  directed  to  consider  a  gen- 
eral benefit  (one  not  special,  peculiar,  exceptive),  then 
such  statute  is  in  conflict  with  that  provision  of  the 
state  Constitution  that  private  property  shall  not  be 
taken  for  public  use  without  just  compensation,  yet 
here  is  a  case  wherein  the  tax  is  valid  without  any 
benefit  at   all,  general  or   special.     The   tax  is  valid 


Chap.  8]       Changes  in  Judicial  Rulings.  219 

thoui^h  tlie  lot  was  not  Ijenefittnl;  "tlK>iip:h  its  value  was 
destroyed"  by  the  work  to  pay  for  which  the  tax  was 
levied,  and  the  tax  is  valid. 

Consider  the  construction  put  by  the  court  on  this 
particular  statute,  the  Kansas  City  Cliarter.  It  makes 
provision  that  when  a  street  is  to  be  graded  and  pri- 
vate property  may  be  damaged,  a  proceeding  is  had  in 
court  to  inquire  into  the  fact  whether  private  property 
will  be  damaged,  and  if  so  how  much  ?  The  owner  may 
appear  in  court  and  prove  the  fact  of  damages  to  his 
proijerty  and  the  ampunt  thereof.  He  has  an  oppor- 
tunity to  be  heard  on  the  question  whether  his  property 
will  be  damaged  for  public  use  and  the  amount  there- 
of. The  constitutional  provision  gives  him  not  dam- 
ages for  the  injuiy  done,  but  ''just  compensation." 
Section  12  of  article  8  of  the  Kansas  City  Charter,  1889 
(p.  134)  is  thus: 

''See.  12.  When  grading  mag  be  done— Payment 
of  damages  into  ro?<r^— Should  no  claim  for  damages 
be  filed  on  or  before  the  day  set  for  hearing  as  pro- 
vided in  section  five  of  this  article,  or  if  the  verdict  or 
report  of  the  commissioners  shall  declare  that  no  dam- 
age will  result  to  private  property  from  the  proposed 
grading  or  re-grading,  or  if  damages  assessed  by  said 
verdict  or  report  shall  be  paid  to  the  owners,  or  into 
court  for  them,  the  dtp  may  proceed  to  cause  the  grad- 
ing or  re-grading  to  he  done  according  to  the  ordi- 
nance. Payment  to  the  clerk  of  the  court  for  the  owner 
shall  l>e  deemed  a  ijayment  into  court  of  any  damages 
assessed." 

The  decision  is  that  the  city  may  cause  the  grading 
to  be  done  notwithstanding  this  charter  provision  is  not 
complied  with.  The  city  is  not  bound  to  com.ply  with 
the  cliarter  or  tlie  Constitution. 

The  opinion  in  McQidddy  r.  Smith,  67  Mo.  App. 
at  208,  says: 


220  Lwv  OF  Local,  Taxation.  [Chap.  8 

^ '  It  was  not  intended  by  the  provisions  of  the  char- 
ter of  1889  to  make  the  assessment  of  damages  and 
benefits  for  grading  a  street  a  condition  precedent  to 
the  authority  of  the  city  to  order  the  improvement  and 
assess  the  cost  thereof  to  the  abutting  property." 

The  writer  is  at  a  loss  to  understand  the  reason 
for  the  foregoing  conclusion  of  the  court.  The  city  may 
cause  the  grading  to  be  done  under  certain  circum- 
staiices :  First,  if  no  claim  for  damages  be  filed ;  sec- 
ond, if  the  verdict  be  that  there  are  no  damages;  or 
third,  if  damages  be  assessed  and  such  damages  are 
paid  to  the  owner  or  into  court  for  the  owner.  The  city 
is  not  authorized  to  grade,  unless  these  damages  are 
paid  to  the  owner  or  into  court  for  the  owner.  Here 
Mrs.  Smith's  lot  was  damiaged  by  the  grading  to  the 
extent  of  $2,750.  The  law  seems  to  be  that  upon  pay- 
ment of  this  $2,750  to  Mrs.  Smith  the  owmer,  or  into 
court  for  Mrs.  Smith  the  owner,  the  city  may  cause 
the  grading  to  be  done.  Has  the  city  the  power  to  cause 
the  grading  to  be  done  without  complying  with  this 
condition  f  Sujjpose  the  verdict  in  this  cause  had  as- 
certained the  fact,  as  it  afterwards  turned  out,  that 
Mrs.  Smith's  property  was  damaged  to  the  extent  of 
$2,750.  Under  this  statute  had  the  city  the  power  ' '  To 
cause  the  grading  or  regrading  to  be  done  according  to 
the  ordinance,"  without  paying  this  $2,750  to  Mrs. 
Smith,  or  into  the  court  for  Mrs.  Smith?  The  verdict 
and  judgment  merely  ascertained  the  fact  of  damage 
and  the  amount.  The  verdict  and  judgment  did  not 
create  the  damage. 

The  construction  put  by  the  court  on  this  Kansas 
City  Charter  becomes  a  part  of  it  the  same  as  if  copied 
into  it.  ' '  It  was  not  intended  by  the  provisions  of  the 
Charter  of  1889  to  make  the  assessment  of  damages 
and  benefits  for  grading  a  street  a  comdition  precedent 
to  the  authority  of  the  city  to  order  the  imiprovement 


Chap.  8]       Changes  in  Judicial  Rulings.  221 

and  assess  the  cost  tliereof  to  the  abutting  property." 

They  may  grade  the  street  and  thereby  damage 
private  property  for  public  use.  They  may  so  grade 
and  may  so  damage  private  property  for  public  use 
without  ascertaining  in  advance  or  paying  in  advance 
"just  compensation"  to  the  owner  or  into  court  for  the 
owner.    This  is  this  statute  judicially  constnied. 

If  the  Legislature  may  thus  make  a  law  to  damage 
private  property  for  public  use  without  providing  in 
that  law  for  ascertaining  such  ''just  compensation"  in 
advance,  and  paying  it  to  the  owner  or  into  court  for 
the  owner,  then,  the  Legislature  may  in  like  manner 
make  a  law  for  taking  private  property  for  public  use 
without  any  provision  for  ascertaining  or  paying  ''just 
compensation"  for  such  taking,  either  in  advance  or 
otherwise,  or  to  the  owner  or  into  court  for  the  owner 
(as  in  25  Mo.  277). 

Under  the  Constitution  of  Missouri  of  1875,  the 
owner  of  private  property  is  just  as  much  entitled  to 
"just  compensation"  in  advance  for  damaging  private 
property  for  jniblic  use  as  he  is  entitled  to  "just  com- 
pensation" in  advance  for  taking  his  private  prox)erty 
for  public  use.  Both  rights  are  secured  in  the  same 
sentence  in.  the  Constitution. 

"Legislative  acts  which  direct  private  property  to 
be  taken  for  public  use  must  provide  the  owner  with  a 
pro])er  remedy  to  obtain  compensation,  or  they  will  be 
disregarded  by  the  courts  as  inconsistent  with  the  con- 
stitution." [Walther  v.  Warner,  25  Mo.  277  loc.  cat. 
285-6.] 

Although  in  a  proper  condemnation  proceeding 
"just  compensation"  was  ascertained  and  paid  to  the 
owner  in  Walther  v.  Warner,  supra,  yet  this  was  no  de- 
fense to  the  action  of  trespass  in  entering  the  land  and 
building  the  road.  The  Kansas  City  Charter  pays  the 
wrong  man.     In  Walther  v.  Warner,  supra,    notwith- 


222  Law  of  Local  Taxation.  [Chap.  8 

standing  that  in  a  condemnation  proceeding  the  owner 
secured  "just  compensation"  for  the  land  taken,  he 
can  still  recover  for  the  trespass  committed,  for  the 
wrong  done,  while  in  McQuiddy  v.  Smithy  although 
Mrs.  Smith  recovered  "just  compensation"  for  dam- 
aging her  private  property  for  public  use,  she  must 
pay  the  cost  of  doing  that  damage.  The  landowner  was 
more  fortunate  in  Walther  v.  Warner,  supra. 

If  in  the  way  of  a  local  tax  a  laudowner  can  be 
compelled  to  pay  the  cost  of  damaging  liis  private 
property  for  public  use,  why  can't  he  be  oompelled  in 
the  way  of  a  local  tax  to  pay  the  cost  of  taking,  up  to 
the  value  of  the  property?  If  private  property  can  be 
damaged  without  paying  for  it  why  can't  it  be  taken 
without  paying  for  it? 

In  Armstrong  v.  The  City  of  St.  Louis,  69  Mo.  309, 
et  seq.,  one  question  was  whether  an  action  of  eject- 
ment might  be  maintained  against  St.  Louis  for  land 
used  by  the  city  as  a  street.  The  case  was  decided  at 
April  term,  A.  D.  1879,  of  the  Supreme  Court.  Say  the 
court  at  page  311 : 

'  *  The  principal  question  in  this  case  is,  whether  an 
action  of  ejectment  will  lie  against  a  city,  by  the  owner 
of  land  wrongfully  taken  by  the  city  and  converted  into 
and  used  as  a  public  street.  There  are  authorities  which 
hold  that  the  action  cannot  be  maintained,  but  the  rea- 
sons given  for  it  are  unsatisfactory. ' ' 

In  Cowenhoven  v.  City  of  Brooklyn,  38  Barb.  9, 
the  court  say : 

"The  claim  of  the  corporation,  if  any,  was  to  a 
public  right  of  way  over  the  land,  not  incompatible 
with  the  title  of  the  plaintiff,  for  it  was  a  mere  ease- 
ment, nor  with  his  possession,  for  if  he  owned  the  fee  of 
the  land  over  which  the  street  passes,  he  would,  in  con- 
templation of  law,  be  in  possession  of  the  street,  and 
might  maintain  trespass  against  another  for  any  use  of 


Cliap.  8]       Changes  in  Judicial  Rulings.  223 

the  land  exce])!  for  the  purpose  of  traveling."  Com- 
menting on  this  lang:nage  of  the  Supreme  Court  of  New 
York,  the  Supreme  Court  of  Missouri  say: 

"The  owner  of  the  land  in  such  case  is  as  entirely 
deprived  of  the  use  of  the  land  as  if  the  city  had  tnken 
it  and  claimed  to  be  the  owner  in  fee  simple.  To  say 
that  he  is  in  'Contemplation  of  law  in  possession  of  the 
street'  is  no  answer  to  the  real  fact  that  he  is  entirely 
deprived  of  the  possession.  He  has  the  same  right  to 
travel  over  the  street  as  any  other  person  not,  however, 
as  owner  of  the  property,  but  as  one  of  the  public,  any 
one  of  whom  can  exercise  as  much  dominion  over  the 
property  as  he.  He  is  entirely  deprived  of  his  property. 
He  cannot  sue  the  public  or  any  one  traveling  on  the 
street,  and  recover  his  property ;  and  if  he  cannot  sue 
the  corporation,  which  has  taken  and  holds  possession 
of  the  premises  as  a  street,  and  recover  the  specific 
proj>erty  then  private  property  may  be  taken  and  held 
for  public  use,  icithout  a  compliance  with  the  la-w  pro- 
viding a  mode  of  condemnation.  He  may  sue  and  re- 
cover its  value  from  the  city,  and  has  no  other  remedy, 
it  is  contended;  but  this  would  be  to  hold  his  pro]> 
erty  at  the  mercy  of  tlie  city,  which  can  take  it  away 
from  him,  and  compel  him  to  accept,  ini  lieu  of  the 
property,  the  amount  of  money  a  jury  may  estimate  it 
to  be  worth,  or,  rather,  a  judgment  for  tliat  amount, 
which  may  possibly  never  be  satisfied,  and  thus  force 
him  to  exchange  his  land,  which  he  may  wish  to  hold, 
for  money,  or  other  property,  wliich  he  does  not  want. 
He  has  a  right  to  the  specific  property  and  no  corpora- 
tion, not  even  the  State^  can  deprive  him  of  it  but  in  the 
manner  provided  by  law." 

In  Walther  r.  Warner,  25  Mo.  277,  the  railroad 
company  did  not  comply  with  the  Constitution  and  the 
law,  and  her  contra<?tor  and  his  assistants  were  liable 
in  an  acti(5^  of  trespass  brought  by  the  landowner.  The 


224  Law  of  Local  Taxation.  [Chap.  8 

landowner  obtained  judgment  against  the  contractor 
for  what  the  contractor  did.  In  McQuiddy  v.  Smith 
the  contractor  obtained  judgment  against  the  land- 
owner for  what  he  did.  The  contractor  had  no  con- 
tract with  the  landowner  in  either  case.  Here  is  a 
strange  reversal  of  rights  and  liabilities. 

In  Soulard  v.  St.  Louis,  36  Mo.  546,  et  seq.,  the 
landowner  recovered  against  St.  Louis  in  an  action  of 
trespass  the  value  of  the  land  taken  by  St.  Louis  for 
public  use  as  a  street.  A¥hen  the  money  was  paid  the 
title  passed  by  oj^eration  of  law.  If  I  take  personal 
property  by  trespass,  the  owner  may  in  an  action  of 
trespass  recover  against  me  the  value  of  the  personal 
property  taken,  and  when  the  judgment  is  paid  the 
title  to  the  property  passes  by  operation  of  law. 

In  like  manner  the  landowner  may  now  recover  in 
an  appro jjriate  action  just  compensation  (this  may  be 
more  than  damages)  for  damaging  his  private  property 
for  public  use  by  corporate  action.  This  ' '  just  compen- 
sation" for  either  taking  or  damaging  may  now  be  re- 
covered by  the  landowner  from  the  corporation.  But 
the  corporation,  through  its  contractor,  can  recover 
from  the  damaged  landowner  the  cost  of  doing  the 
damage  under  the  law  of  taxation.  Why  can't  the 
coi73oration  by  taxation  recover  from  the  landowner 
the  cost  of  taking,  including  the  value  of  the  land!  It 
is  certainly  a  most  remarkable  law  that  pays  the 
wrongdoer  to  do  this  constitutional  wrong.  He  is  a  con- 
stitutional highwayman.  Because  the  thing  is  prohib- 
ited to  the  corporation,  the  courts  look  on  the  act  as 
being  one  which  the  corporation  has  no  capacity  to  do. 
Stealing  is  prohibited,  i.  e.,  the  law  takes  away  from 
the  individual  the  power  to  steal.  People  cannot  steal 
because  the  statute  takes  away  their  capacity  to  do  so. 
In  Powers  v.  Hummert^  51  Mo.  136  (referred  to 
elsewhere),  a  railroad  condemned  land  for  its  road  and 


Chap.  8]       Changes  in  Judicial  Rulings.  225 

after  the  commissioners 's  report  was  filed,  ])ut  before 
the  money  was  paid  into  court,  the  contractor  for  grad- 
ing the  railroad  entered  on  the  land  and  tore  down  the 
fences  and  commenced  grading  the  roadbed;  then  the 
money  was  paid  into  court  for  the  landowner  who  took 
the  money;  he  was  just  like  a  corporation  in  that  re- 
spect and  sued  the  contractor  in  trespass  and  recov- 
ered, directly  the  reverse  of  the  holding  in  McQuiddy 
V.  Smith,  above  cited.  If  the  city  authorize  a  trespass 
or  wrong  it  is  dangerous  to  sue  the  trespasser.  He  may 
file  a  counterclaim  for  the  cost  of  doing  the  trespass 
(for  the  laborer  is  worthy  of  his  hire,  especially  if  he 
is  hired  to  violate  the  Constitution),  and  the  wronged 
individual  may  have  to  pay  more  on  the  counterclaim 
that  he  obtains  on  the  petition. 


15 


CHAPTER  9. 

OUR  CONSTITUTIONS  IN  THE  LIGHT  OF  THE  HISTORY  OF  THE 

STATES. 

We  ought  to  read  the  Constitution  of  Missouri, 
adopted  in  1875,  in  the  light  of  the  previous  history 
of  tlie  State. 

By  ordinance  of  the  State  Convention  on  July  19, 
1820,  a  public  fund  for  roads  and  canals  is  provided. 
Five  per  cent  of  the  sale  of  lands  was  put  into  a  fund 
to  build  roads  and  canals  (see  B),.  S.  1825,  vol.  1,  p.  40, 
under  "Third"  at  bottom  of  page).  Article  7  of  the 
Constitution  of  1820  pro\aded  that  ' '  Internal  improve- 
ments shall  forever  be  encouraged  by  the  government 
of  this  State,"  and  funds  are  required  to  be  provided 
for  improving  roads  and  rivers.  We  have  the  canal 
fund  yet  in  all  our  Revised  Statutes  in  Missouri  even 
njow.  Article  7  of  the  Constitution  was  not  changed  till 
1865.  Pursuant  to  the  direct  requirement  of  the  Mis- 
souri Constitution  of  1820,  to  encourage  internal  im- 
provement, the  State  issued  its  bonds  and  took  stock  in 
roads  and  railroads.  This  continued  for  forty-five 
years  after  the  admission  of  the  State  into  the  Union. 
During  this  forty-five  years,  the  State  became  involved 
to  a  ver}^  great  extent  financially.  Railroads  and  roads 
were  of  more  importance  than  streets.  Plank  roads 
were  first  used  and  then  macadamized  roads.  These 
were  all  ''toll"  roads.  They  were  called  "Turnpikes." 
The  corporation  was  required  to  construct  and  operate 
the  road  and  was  authorized  to  charge  "toll"  for  each 
wagon,  horseman  or  vehicle  passing  over  the  road.  A 
road  of  that  kind  was  in  use  in  this  county  connecting 
Kansas  City  or  AVestport  landing  with  Westport.  This 
road  was  used  in  1865  as  a  "toll"  road.     The  toll  gate 

(226) 


Chap.  9]    History  and  Our  Constitutions.  227 

was  near  Twenty-fourth  street  and  Grand  avenue  in 
Kansas  City.  We  had  then  in  early  times  state  roads 
and  county  roads.  Later  c^iine  railroads.  The  coun- 
ties, cities,  towns  and  villages  had  subscriljed  stock  and 
issued  tlieir  bonds  for  railroads.  In  article  11  of  the 
Constitution  of  18G5,  three  sections  are  thus: 

"Section  13.  The  credit  of  the  State  shall  not  be 
given  or  loaned  in  aid  of  any  ])erson,  association  or  cor- 
poration; nor  shall  the  State  hereafter  become  a  stock- 
holder m  any  corporation  or  association  except  for  the 
puii^ose  of  securing  loans  heretofore  extended  to  cer- 
tain railroad  cor]w rations  by  the  State." 

"Section  14.  The  G-eneral  Assembly  shall  not  au- 
thorize any  county,  city  or  town  to  become  a  stockhold- 
er in  or  to  loan  its  credit  to  any  company,  association, 
or  cor]X)ration,  unless  two-thirds  of  the  qualified  voters 
of  such  county,  city  or  town,  at  a  regular  or  special 
election,  to  be  held  therein,  shall  assent  thereto." 

"Section  15.  The  General  Assembly  shall  have  no 
power,  for  any  pui^pose  whatever,  to  release  the  lieu 
held  by  the  State  upon  any  railroad." 

Section  13  took  away  all  power  in  this  direction 
and  section  15  is  a  direct  and  positive  vote  of  the  want 
of  confidence.  The  Legislature  of  the  State,  possess- 
ing all  legislative  power,  is  supposed  to  be  so  just  and 
honest  ns  not  to  yield  the  state  interest  to  any  one,  and 
they,  entrusted  with  making  laws  for  the  whole  people 
of  the  State,  are  supposed  to  be  so  wise  that  no  artifice 
or  cunning  can'  be  contrived  by  which  the  people's  in- 
terest entrusted  to  their  hands  will  in  any  degi'ee  suf- 
fer. "We  have  no  confidence  in  you,"  say  the  people 
to  the  Legislature.  It  is  so  blunt  and  positive  as  to  be 
an  insult  to  their  honor,  honesty  and  integrity.  The 
Constitution  says  to  the  L^egislature,  "You  shall  not  re- 
lease the  state  lien  on  any  railroad."  Kead  the  lan- 
guage of  the  Constitution  in  the  light  of  the  histoiy  of 


228  Law  of  Local  Taxation.  [Chap.  9 

the  State  in  its  connection  with  the  railroads:  "You 
shall  not  release  this  state  lien.  We  have  no  confidence 
in  you.  You  are  shorn  of  all  power  on  this  subject.  You 
are  not  fit  to  be  trusted ! ' '  Such  a  declaration  against 
a  private  person  would  be  almost  an  actionable  slander 
or  libel ;  however,  there  were  very  good  grounds  for 
this  want  of  confidence. 

Section  14  is  a  direct  vote  of  want  of  confidence  in 
county  courts,  city,  town  and  village  councils:  "The 
Legislature  shall  not  authorize  any  county,  city  or 
town  to  become  a  stockholder  in  or  loan  its  credit  to 
any  company,  association  or  corporation,  unless  two- 
thirds  of  the  qualified  voters  of  such  county^  city  or 
town  at  a  regidar  or  special  election  to  he  held  therein 
shall  assent  thereto." 

Neither  the  county  officers  elected  by  the  people, 
nor  the  city  or  town  officers  elected  by  the  people,  are 
to  be  trusted.  The  whole  people  are  close  to  them  and 
can  watch  them.  If  a  man  is  not  worthy,  the  people 
are  the  persons  to  know  him,  and  they  need  not  elect 
him.  The  officer  may  be  elected  by  a  bare  majority  but 
if  the  stock  was  to  be  taken,  or  bonds  issued,  two-thirds 
of  all  the  voters  must  have  assented  thereto.  A  majority 
was  not  enough;  there  must  be  two-thirds.  Here  was 
a  want  of  confidence  in  the  official.  Wliile  the  road  or 
railroad  may  be  a  great  public  benefit  to  the  county  or 
city  or  town,  yet  the  chosen  representatives  of  the  peo- 
ple were  not  to  be  trusted  in  this  matter  without  the 
two-thirds  vote.  If  one  hundred  men  out  of  three  hun- 
dred oppose  the  road  or  bonds  there  was  no  official  with 
power  to  act  or  issue  bonds  or  take  stock.  The  tax 
power  was  involved  when  the  state  credit  was  loaned 
or  bonds  issued  or  stock  taken.  The  tax  power  was 
involved  when  the  city  or  town  or  county  took  stock  in 
railways  or  issued  bonds.  If  a  mlunicipal  corporation 
can  create  a  debt  it  must  pay  by  taxation.      Here  is 


Chap.  9J     History  and  Our  Constitutions.  229 

great  want  of  confidence  in  tlie  county,  city  and  town 
officials  on  this  question  as  a  tax  question. 

Then  we  began  action  under  the  Constitution  of 
1865.  The  State  ceased  to  take  stock  or  issue  bonds 
for  roads  and  the  Legislature  authorized  cities  and 
towns  to  take  stock  (and  of  course  pay  for  it  by  levying 
a  tax)  or  issue  bonds  for  roads  (a  tax  must  be  levied 
to  pay  the  bond).  The  county  court,  the  city  and  town 
goveninient  took  stock  and  issued  bonds  for  road-build- 
ing, but  it  was  soon  ascertained  in  actual  practice  that 
these  officials  could  not  be  trusted  even  when  sup- 
ported by  a  two-thirds  vote.  Accordingly  in  the 
Constitution  of  1875  all  power  on  this  subject  was 
taken  away.  The  tax  power  was  involved  in  all  these 
roads  just  as  much  as  it  is  now  involved  in  our  streets. 
The  State,  the  city,  the  town  and  the  \'illage  can  get 
money  only  by  taxing.  There  is  no  other  way  to  get 
money  to  pay  a  state  or  county  or  city  or  town  bond, 
and  if  the  corporation  cannot  tax,  it  cannot  make  a 
bond. 

Some  power  must  determine  whether  a  proposed 
road  will  be  any  benefit,  and  if  so  how  much.  Roads 
are  in  general  beneficial  to  the  countr}^  through  which 
they  pass.  How  much  benefit  the  road  was  to 
the  State,  to  the  public,  was  determined  by 
the  Legislature.  In  1865,  after  an  experience  of  forty- 
five  years,  it  was  determined  by  the  people  through  the 
Constitution,  that  the  Legislature  was  not  a  safe  tribu- 
nal with  which  to  entrust  this  question  of  benefit  in  is- 
suing bonds  or  taking  stock  in  railroads.  Indi\'iduals 
could  take  stock  in  railways  and  give  their  notes  and 
bonds  to  pay  for  them.  Individuals  have  been  known 
to  take  stock  in  roads  and  lose  everything  they  put  into 
the  road.  As  legislators  they  were  not  improved  in 
this  respect  by  merely  being  raised  from  the  private 
walks  of  life  to  the  ranks  of  legislators.     If  the  Legis- 


230  Law  of  Local  Taxation.  [Chap.  9 

lature  had  takeoi  stock  in  railroads  and  paid  for  such 
stock  by  bonds;  if  such  stock  had  doubled— trebled — 
quadiiipled — in  value  and  had  paid  tean  per  cent  divi- 
dends i^er  annum,  the  legislative  power  to  determine 
these  benefits  would  not  have  been  taken  away  from 
the  Legislature.  The  State,  under  the  judgment  of  the 
Legislature,  entered  into  speculations  in  railroad-build- 
ing and  as  a  stockholder  was  to  receive  large  benefits 
and  dividends,  but  the  supposed  benefits  were  never 
realized.  The  State  was  a  poor  speculator.  In  fact, 
the  other  fellow  always  speculated;  the  State  always 
lost,  relying  on  the  judgment  of  the  Legislature  as  to 
benefits.  In  1865,  after  forty-five  years  of  experience 
in  the  mlatter  of  these  legislative  determinations  of  ben- 
efits from  roads,  the  people,  through  the  Constitution, 
concluded  that  the  Legislature  was  a  poor  judge,  and 
its  power  was  taken  away.  The  Legislature  had  au- 
thorized counties,  cities  and  towns  to  issue  railroad 
bonds,  but  their  good  judgment  as  to  benefits  was  ques- 
tioned so  that  they  could  not  act — could  not  determbie 
these  benefits— and  issue  the  bonds  unless  two-thirds 
of  the  voters  voted  for  them.  Without  this  two-thirds 
vote  the  county  court,  the  city  council,  the  town  council 
were  not  proper  or  safe  tribunals  to  determine  this 
question  of  benefit  to  be  derived  from  the  road.  The 
county  court,  the  city  council,  the  town  council,  even 
when  advised  by  a  two-thirds  vote,  were  in  practice 
very  poor  judges  of  the  benefits  of  roads  and  the  prop- 
er method  to  get  them.  The  county,  city,  town,  always 
lost.  Co-stockliolders,  always  got  the  best  of  the  bar- 
gain. So  in  1875  the  people  of  this  State,  after  fifty- 
five  years  of  experience,  took  away  this  power.  The 
Legislative  judgment  had  always  been  at  fault.  The 
judgment  of  the  county  court,  the  city  council,  town 
council,  had  always  been  at  fault,  and  the  power  was 
taken  away  entirely.      The  Stat©  could  not  take  the 


Chap.  9J     History  and  Our  Constitutions.  231 

stock  or  issue  the  bonds  nor  authoiize  the  city,  county 
or  town  to  do  so  even  with  a  two-thirds  vote.  The  leg- 
islative judgment,  the  official  judgment,  was  not  to  be 
trusted.  After  fifty-five  years  of  experience  this  was 
the  people's  determination  as  expressed  in  the  Consti- 
tution they  adopted  in  1875. 

If  the  business  judgment  of  the  state  legislature 
on  issuing  bonds  and  taking  stock  in  railroads  is  dis- 
credited— if  the  business  judgment  of  the  county  court 
and  the  city  council  and  town  council  on  the  question 
of  benefits  in  bonds  and  stocks  for  railroads  is  discred- 
ited—not to  })e  relied  on,  why  should  the  abutting  prop- 
erty-owner be  turned  over  to  such  poor  judges— judges 
not  to  be  relied  on— not  to  be  trusted  after  fifty-five 
years  of  fair  trial— judges  whose  bad  (and  in  some 
cases  perhaps  coiTiipt)  judgment,  has  financially 
ruined  some  of  our  cities  and  towns,  and  even  counties  ? 
We  are  taxed  to  death. 

Section  9  of  article  8  of  the  Constitution  of  New 
York  is  thus : 

''It  shall  be  the  duty  of  the  Legislature  to  provide 
for  the  organization  of  cities  and  incorporated  villages 
and  to  restrict  their  power  of  taxation,  assessment, 
borrowing  money,  contracting  debts  and  loaning  their 
credit,  so  as  to  prevent  abuses  in  assessments  and  in 
contracting  debts  by  such  municipal  corporations." 

Here  is  a  requirement  to  provide  for  the  organiza- 
tion of  cities  and  incorporated  villages  and  to  restrict 
their- 

1.  Power  of  taxation ; 

2.  Power  of  assessment ; 

3.  Power  to  borrow  money ; 

4.  Power  to  contract  debts; 

5.  Power  to  loan  their  credit. 

These  things  must  be  done  so  as  to  prevent — 
1.     Abuses  in  assessments. 


232  Law  of  Local  Taxation.  [Chap.  9 

2.    Abuses  in  contracting  debts. 

AVithout  entering  at  large  into  the  meaning  of  this 
language  used  we  presume  there  can  be  no  doubt  that 
the  framers  of  the  New  York  Constitution  meant  that 
whatever  restrictions  were  placed  on  the  power  of  as- 
sessment (meaning  local  taxes  or  assessments  on  abut- 
ting property),  must  be  placed  there  by  the  Legisla- 
ture. It  disclaims  any  intention  on  the  part  of  the 
framers  of  the  Constitution  to  place  restrictions  on  as- 
sessments or  local  taxes.  The  Missouri  Constitution 
does  not  in  term,  or  by  implication,  require  the  Legis- 
lature to  restrict  the  powers  of  cities  and  incorporated 
villages  in  making  local  assessments.  The  Missouri 
Constitution  restricts  taxation  without  referring  the 
matter  to  the  Legislature  to  make  restrictions.  The 
power  to  make  an  assessment  must  exist  before  it  can 
be  restricted.  The  New  York  Constitutioiui  assmnes  the 
existence  of  the  power  and  refers  the  whole  subject  to 
the  Legislature.  With  this  specific  provision  on  local 
taxation,  other  parts  of  the  Constitution  do  not  and  can 
not  apply.  With  this  specific  provision  in  force,  the 
other  niles  of  constitutional  law  do  not  apply,  such  as 
these:  ''No  person  shall  be  deprived  of  life,  liberty  or 
property  without  due  process  of  law ; "  "  Private  prop- 
erty shall  not  be  taken  or  damaged  for  public  use  with- 
out just  compensation,"  etc.,  etc. 

The  New  York  Legislature  could  provide  for  the 
organization  of  cities  and  incorporated  villages  as  well 
without  this  provision  as  with  it.  The  New  York  Leg- 
islature could  restrict  their  powers  of — 

1.  Taxation; 

2.  Assessments ; 

3.  Borrowing  money ; 

4.  Contracting  debts; 

5.  Loaning  credit; 

as  well  without  this  constitutional  provision  as  with 


Chap.  9]     History  and  Our  Constitutions.  233 

it.  It  is  DO  restriction  at  all.  The  statute  admits  a 
power  in  cities  and  incoi-porated  villages  to  tax,  to  con- 
tract debts,  to  borrow  money,  and  loan  credit. 

"There  is  no  way  of  enforcing  this  injunction  on 
the  Legislature.  Under  our  system  of  government 
there  is  no  power  to  compel  the  legislative  department 
of  government  to  make  laws.  Constitutions  may  re- 
strict legislative  powers,  and  declare  what  laws  shall 
not  be  valid;  but  from  the  very  nature  of  legislative 
])Ower,  its  exercise  in  a  particular  case  must  dejDend 
upon  the  volition  of  the  Legislature.  "Responsibility 
to  a  constituency,  and  a  sense  of  public  duty  are  the 
only  incentives  which  can  prompt  legislative  action." 
[St.  Joseph  Board  of  Public  Schools  v.  Patton  et  al., 
62  Mo.  444,  at  448  (A.  D.  1876).] 

Again,  page  449 : 

''The  Legislature  already  possessed  the  power  of 
limiting  taxation  to  the  maximum  adopted  in  the  Con- 
stitution." 

"Private  property  shall  not  be  taken  or  damaged 
for  public  use  without  just  compensation,"  is  in  sub- 
stance in  the  Constitution  of  New  York.  "No  person 
shall  be  deprived  of  life,  liberts^  or  property  without 
due  process  of  law,"  is  likewise  in  substance  a  part  of 
the  Constitution!  of  New  York.  All  the  parts  of  a  stat- 
ute must  be  construed  together  and  a  constitution  is  a 
statute  within  the  meaning  of  this  rule.  The  only  dif- 
ference is  that  no  act  of  the  state  Legislature  can  over- 
ride the  state  Constitution.  In  the  respects  indicated 
the  New  York  Constitution  makes  no  restrictions.  The 
New  York  Constitution  re<]uires  her  Legislature  to 
pass  laws  restricting  the  powers  of  cities :  first,  of  tax- 
ation; second,  assessments;  third,  of  boiTowing  money; 
fourth,  of  contracting  debts;  fifth,  of  loaning  their 
credit.  Why  restrict  these  five  powers  if  they  do  not 
exist? 


234  Law  of  Local  Taxation.  [Chap.  9 

The  power  to  tax  is  generally  regarded  as  a  legis- 
lative power,  and  in  general,  legislative  powers  cannot 
be  delegated.  Cities  in  New  York  without  any  general 
or  special  act  of  the  state  Legislature,  by  mere  force 
of  the  state  Constitution  without  more,  possess  the 
powers  enumerated,  viz. :  first,  taxation ;  second,  local 
assessments ;  third,  borrowing  money ;  fourth,  contract- 
ing debts;  fifth,  loaning  their  credit.  Cities  in  New 
York  have  the  powers  named.  No  act  of  the  New  York 
Legislature  is  necessary.  Unless  the  Legislature  make 
restrictions,  these  five  powers  are  absolutely  without 
any  limit. 

A  city  in  New  York,  by  the  mere  force  of  her  Con- 
stitution, without  any  enabling  act  on  the  part  of  her 
Legislature,  may  tax  all  the  property  in  her  city  limits 
one  hundred  per  cent;  that  city  may  make  a  local  as- 
sessment of  one  hundred  per  cent ;  the  city  may  borrow 
money  to  the  extent  of  one  hundred  per  cent  of  all  the 
taxable  property;  the  city  may  contract  debts  to  the 
extent  of  one  hundred  per  cent  of  all  the  property  in 
the  city;  the  city  may  loan  its  credit  to  the  extent  of 
one  hundred  per  cent  of  all  the  property  in  the  city 
and  these  Shylock  bonds  are  good  unless  the  Legisla- 
ture restrict  these  five  powers,  and  then  the  bonds  are 
good  up  to  the  line  marked  out  by  the  Legislature. 

In  local  taxation,  and  in  the  other  kinds  of  taxa- 
tion, the  New  York  Legislature  is  not  governed  or  lim- 
ited or  controlled  by  her  Constitution.  Such  is  the 
plain  meaning  of  the  language  used  by  the  framers  of 
that  Constitution.  The  New  York  Constitution  confers 
the  five  powers  which  it  directs  her  Legislature  to  re- 
strict "So  as  to  prevent  abuses  in  assessments  and  in 
contracting  debts  by  such  municipal  corporations." 
It  is  said  that  ''AH  power  may  be  abused."  This 
is  the  favorite  expression  of  the  advocates  of  the 
unlimited  power  of  local  taxation,  a  power  that  does 


Chap.  9]     History  and  Our  Constitutions.  235 

not  exist  cannot  be  abused.    A  power  tliat  does  not  exist 
cannot  be  restricted. 

In  1875  the  Supreme  Court  of  Missouri,  and  al- 
most all  the  states,  had  given  a  constitutional  cliaraxj- 
ter  to  local  taxation  by  a  great  nuiiilier  of  decisions. 
It  was  taxation  on  benefits.     Other  kinds  of  taxation 
were  burdens.    These  local  taxes  were  not  burdens.  We 
now  see  that  this  was  the  song  the  sirens  sang  luring 
us  on  to  destruction.    It  was  the  serpent  in  Eden  just 
before  the  fall.     It  was  the  kiss  of  Judas  just  before 
the  crucifixion.     It  was  the  destroying  angel  entering 
our  midst  wearing  the    livery    of    heaven,    beginning 
anew  the  work  of  destruction,  putting  the  few,  the  de- 
fenseless, the  weak  under  the  unlimited  power  of  city 
and  town  councils  who  (notwithstanding  all  the  checks 
on  arbitrary  power)  had  for  more  than  half  a  century 
been  traitors  to  the  interests  entrusted  to  their  care. 
It  is  the  Benedict  Arnold  of  our  countiy.     It  is  worse 
than  the  rattlesnake,  which  gives  you  notice  before  it 
strikes  the  fatal  blow  and  administers  the  fatal  poison. 
This  vicious  doctrine  has  pursued  and  still  pursues  the 
defenseless,  the  few,  the  weak,  to  their  destruction  with, 
the  relentless  fury  of  the  damned.      It  puts  right  on 
the  scaffold  and  irrong  on  the  throne.     It  is  the  Par- 
thian arrow  that  penetrates  the  heart  of  the  constitu- 
tion and  deadens  it.     It  is  the  prolific  parent  of  more 
injuiy,  wrong  and  injustice  in  one  year  than  all  the 
other  robberies,  larcenies  and  burglaries  in  ten  years. 
It  is  the  malignant  cancer  that  has  eaten  tlie  heart  out 
of  our  constitutions  and  laws.     And  when  now  the  un- 
fortunate victim  ends  his  days  on  earth— when  he  en- 
ters old  Sharon's  boat  to  be  carried  over  the  Stygian 
river — the  Lethean  stream  of  forgetfulness  and  death 
—if  old  Sharon's  boat  lands  him  in  Pluto's  dominions, 
he  may  rest  serene  in  the  assurance  that  the  statutes 


-36  Law  of  Local  Taxation.  [Chap.  9 

and  constitution  of  Hell  are  not,  never  were,  never  will 
be  and  never  can  be  worse. 

"It  is  IV ell  settled  by  the  decisions  of  this  court 
tJmt  assessments  like  those  sued  on  are  not  regarded 
as  a  tax  hut  as  an  assessment  for  improvements,  and 
are  not  considered  as  a  burden  but  as  an  equivalent  or 
compensation  for  the  enhanced  value  which  the  prop- 
erty derived  from  the  improvement." 

Did  the  court  mean  that  such  assessments  were  not 
considered  as  burdens  while  they  were  in  fact  the  most 
onerous  of  burdens!  Did  the  court  mean  that  we  were 
to  take  the  declaration  as  a  judicial  lie!  This  tax  is  an 
equivalent  or  compensation  for  the  enhanced  value 
which  the  property  derived  from  the  improvement. 
When  the  value  is  enhanced  one  dollar,  did  the  courts 
mean  that  tlie  property-owner  must  pay  two,  three,  or 
a  hundred  dollars !  Did  the  court  mean  to  assert  that 
a  one-dollar  benefit  is  the  equivalent  of  a  two-dollar 
tax?  If  so,  we  may  have  a  thousand-dollar  tax  the 
equivalent  of  a  one-dollar  benefit.  Is  this  the  equiva- 
lency meant  by  the  court  ?  Did  the  court  mean  that  the 
humble  citizen,  for  one  dollar  benefit  conferred  by  the 
public,  the  state,  or  city,  or  town,  without  his  request, 
should  be  compelled  to  pay  against  his  will  one  him- 
dred  dollars?  When  there  is  no  benefit  at  all,  did  the 
court  mean  that  the  property-owner  must  pay  this  tax 
as  an  equivalent  for  the  benefit  conferred  which  was 
nothing?  Did  the  court  mean  that  the  property-owner 
must  pay  a  three-hundred-dollar  tax-bill  as  an  equiva- 
lent or  compensation  for  a  twenty-seven-hundred-and- 
fifty-dollar  damage  to  his  property?  Was  that  the  en- 
hancement in  value  meant  by  the  court  for  which  the 
proi>erty-owner  must  pay? 

Did  the  court  in  its  decisions  prior  to  1875  mean 
that  this  was  the  tax  which  was  no  burden?  The  Su- 
preme Court  of  this  State  had  held  in  numerous  decis- 
ions that  if  there  was  lacking  this  x>e<5uliar,  exceptive, 


Chap.  9]    History  axd  Our  Constitutions.  237 

benefit,  the  local   tax  was  unconstitutional.     The   Su- 
preme Court  had  held  in  numerous  decisions  that  a  gen- 
eral benefit  rendered  the  tax  unconstitutional.    [25  Mo. 
535.]     The  case  of  City  of  St.  Louis  to  use  v.  Allen,  re- 
ferred to  supra,  was  on  tax-bills  for  "curbing,  gutter- 
ing and  macadamizing"  in  front  of  defendant's  prop- 
erty.    This  decision  was  rendered  in  1873,  two  years 
before  the  Missouri  Constitution  of  1875  was  adopted. 
The  tax-bill  in  the  case  oiSheehan  v.  The  Good  Samar- 
itan Hospital  was  ''for  the  improvement  of  the  street 
on  its  front."     "Local  assessments  are  constitutional 
only  when  imposed  to  pay  for  local  improvements  con- 
ferring special  benefits."     [54  Mo.  1.  c.  474.]    This  was 
in  1873.     None  of  these  cases  are  condemnation  cases 
involving  what  is  called  the  power  of  eminent  domain. 
Local  taxation  is  involved  alone.      The  constitution:'.! 
pro^^Lsion  in  reference  to  taking  private  property  for 
public  use  was  changed.     "Private  property  shall  not 
be  taken  or  applied  to  public  use  without  just  compen- 
sation."    In  Neirhij  v.  Platte  Count ij,  25  Mo.  258,  the 
court  held  that  what  was  a  just  compensation  for  land 
taken  was  a  judicial  question  for  the  courts,  not  a  legis- 
lative question  for  the  legislative  power.     The  consti- 
tutional provision  was  changed. 

It  was  well  known  that  town  lots  were  in  many 
cases  ruined  by  lowering  grades,  or  by  cuts  and  fills, 
so  that  the  property  was  inaccessible.  We  have  streets 
in  Kansas  City  graded  in  1854  for  the  Santa  Fe  trade 
and  much  of  the  abutting  property  has  been  rendered 
worthless  and  unfit  for  use  for  more  than  fifty  years. 
G-rading  a  ]niblic  highway  we  may  say  is  always  an  ad- 
vantage to  the  iniblic  but  it  may  be  an  advantage  or  a 
damage  to  abutting  property.  Grading  proved  a  total 
ruin  to  many  lots  here  in  Kansas  City,  notwithstanding 
the  village  had  only  five  hundred  population  when  the 
ffradinc:  was  done,  and  two  hundred  and  fifty  thousand 


238  Law  of  Local  Taxation.  [Chap.  9 

population  in  the  city  fifty  years  afterward.  The  Con- 
stitution of  1875  aimed  to  remedy  such  cases.  In  St. 
Louis  r.  Peter  Gnrno,  12  Mo.,  the  property  was  dam- 
aged $1,675,  according  to  the  verdict  of  the  juiy  and 
judglinent  of  the  court.  The  judgment  was  reversed, 
not  because  the  ordinance  of  the  St.  Louis  council  di- 
recting the  grading  had  conclusively  deteraiined  that 
the  grading  was  a  benefit  to  Gumo's  property,  but  be- 
cause it  was  ''damnum  absque  injuria"  to  that  prop^ 
erty.  St.  Louis  must  determine  whether  the  grading 
of  this  street  is  a  benefit  to  St.  Louis.  St.  Louis  can 
decide  that  only  by  agent.  Hence,  the  actioni  of  her 
council  is  conclusive  against  the  city,  but  it  is  not  con- 
elusive  against  the  abutting  property-owner.  It  was 
not  clauned  that  the  St.  Louis  council  had  power  to 
decide  the  question  whether  tliis  grading  would  benefit 
abutting  property,  and  that  she  had  so  decided  that  it 
was  a  benefit  by  passing  the  ordinance  to  grade  the 
street,  and  that  therefore  court  and  jury  cannot  inquire 
into  it.  The  case  is  a  case  of  confession  and  avoidance. 
The  damage  is  admitted  but  it  is  ''damnum  absque  in- 
juria." Prior  to  1875  no  one  ever  claimed  that  Mr. 
Gumo  's  property  was  really  benefited  by  this  grading ; 
that  the  St.  Louis  council  had  power  to  decide  that 
question]  and  by  passing  the  ordinance  did  conclusively 
and  finally  determine  that  the  work  was  a  benefit  and 
not  a  damage,  and  that  the  property-owner  could  not 
inquire  into  the  question  in  the  courts. 

Hence,  the  change  in  the  Constitution  in  1875, 
"Private  property  shall  not  be  taken  or  damaged  for 
public  use  without  just  compensation."  After  the 
adoption  of  this  Constitution  in  1875,  the  property- 
owner  was  just  as  much  entitled  to  just  compensation 
for  damaging  his  private  property  for  public  use  as 
for  taking  it  for  public  use;  both  rights  are  secured  in 
the  same  sentence  in  the  Constitution.    What  is  a  just 


Chap.  9]     History  and  Our  Constitutions. 


239 


compensation  for  damaging  private  property  is  just 
as  much  a  judicial  question  as  what  is  just  compensa- 
tion for  taking.  "The  rule  of  constitutional  law  beingi 
that  pHvate  property  can  not  l)e  taken,  for  public  use, 
by  the  authority  of  the  Legislature,  without  a  just  com- 
pensation, it  follows  that  wliat  is  to  be  considered  as 
compensation  within  the  meaning  of  the  clause  is  a 
question  of  law  for  the  courts  and  not  a  matter  for  the 
Legislature."  [25  Mo.  263  (A.  D.  1857).]  The  same 
rule  ought  to  apply  to  damaging.  This  decision  of  the 
Supreme  Court,  of  :Missoun  constniing  the  Constitu- 
tion] of  the  State  became  a  part  of  that  Constitution  the 
same  as  if  copied  into  it,  and  this  was  a  part  of  the 
Constitution  prior  to  1875  the  same  as  if  copied  into  it. 
In  the  Constitution  of  1875,  damaging  is  just  as  much 
prohibited  as  t^kdng;  both  words  are  in  the  same  sen- 
tence associated  together  by  the  framers  of  the  Con- 
stitution. ^Y[mi  is  damaging  private  property  for  pul> 
lie  use,  rather  what  is  just  compensation  for  damaging 
private  property  for  pnblic  use,  is  under  the  Constitu- 
tion of  1875  just  as  much  "A  question  of  law  for  the 
courts  and  not  a  matter  for  the  Legislature,"  as  what 
was  just  compensation  for  taking  under  the  Constitu- 
tion of  1820  or  1865. 

State  roads  and  railroads  are  a  great  advantag-e  to 
the  State.  From  such  state  roads  and  railroads  the 
State  derives  much  benefit.  But  it  was  ascertained  af- 
ter faithful  trials  for  more  than  forty  years  that  it  was 
rmiwise  to  trast  the  legislative  determination  of  bene- 
fits from  roads  and  railroads.  The  roads  and  railroads 
were  undoubtedly  some  benefit  to  the  State  and  her 
property  and  citizens.  But  in  experience  the  benefit 
cost  too  much  to  the  State.  The  State  built  the  roads, 
and  the  other  stockholders  owned  them.  The  state  Leg- 
islature in  place  of  running  the  roads  and  railroads, 
was  run  by  them  and  perhaps  to  the  disadvantage  of 


240  Law  of  Local  Taxation.  [Chap.  9 

the  State.  Eoads  and  railroads  were  and  are  a  bene- 
fit to  the  counties  and  cities  and  towns  through  which 
they  pass.  But  the  county  court,  the  city  and  town 
council,  were  not  wise  enough  to  judiciously  secure  ben- 
efits from  roads  and  railroads  without  the  two-thirds 
vote  of  the  county,  city  or  town,  and  with  all  this  good 
and  judicious  advice  derived  from  the  two-thirds  vote, 
it  was  ascertained  in  1875  that  in  place  of  the  county 
court,  city  or  town  council,  controlling  railroads,  the 
roads  and  railroads  controlled  the  county  court,  the 
city  council,  and  the  town  council.  The  state  legisla- 
tures, the  county  courts,  the  city  councils,  the  town 
councils,  were  knaves  or  fools  not  to  be  entnisted  with 
this  power  of  taxation  for  roads  and  railroads  and  with 
the  determination  of  benefits  derived  from  such 
sources.  Hence,  the  power  was  taken  away  entirely. 
There  was  too  much  danger  of  injury  and  fraud.  But 
the  framers  of  the  Constitution  of  1875  went  still  fur- 
ther. The  pro\asion  adopted  was  that  private  prop- 
erty shall  not  be  taken  or  damaged  for  public  use  with- 
out just  compensation,  but  it  also  provided  that  such 
just  compensation,  either  for  taking  or  damaging,  shall 
be  ascertained  by  a  jnry  or  board  of  commissioners  of 
not  less  than  three  freeholders,  in  such  manner  as  may 
be  provided  by  law.  '^And  until  the  same  (just  com- 
pensation) shall  be  paid  to  the  owner  or  into  court  for 
the  owner,  the  property  shall  not  be  disturbed  or  the 
proprietary  rights  of  the  owner  therein  divested." 

The  law  to  be  enacted  may  provide  for  a  jury  or  it 
may  provide  for  a  board  of  commissioners  of  not  less 
than  three  freeholders.  'Must  compensation"  must  be 
paid  either  to  the  owner  or  into  court  for  him.  This 
Constitution  contemplates  a  jury  or  commissioners  and 
a  court.  This  requirement  of  the  Constitution  could 
not  be  satisfied  by  a  law  appointing  city  councils,  or 
town  councils,  commissioners  or  a  jury.     This  Consti- 


Chap.  9]     History  and  Our  Constitutions.  241 

tution  did  mot  contemplate  making  a  town  council  a 
juiy  to  ascertain  just  compensation  for  land  taken  for 
public  use,  and  land  damaged  for  public  use  is  to  be 
treated  the  same  way.  The  money  may  be  paid  into 
court.  This  contemplates  a  i>roceeding  in  court, 
whether  the  land  be  taken  or  damaged.  For  condemna- 
tion proceedings,  as  usually  understood,  we  have  al- 
ways had  a  court  proceeding.  Now,  damaging  and  tak- 
ing are  put  together  in  the  Constitution.  If  the  reader 
will  excuse  the  expression,  we  may  say  we  have  a  con- 
demnation for  taking  and  a  like  condemnation  proceed- 
ing for  damaging.  Wliether  the  just  compensation 
shall  be  one  dollar  or  one  thousand  dollars,  is  for  tlie 
court.  The  condemning  power  cannot  determine  this 
question.  \Aliether  the  thing  done  is  a  taking,  is  a  ju- 
dicial question  for  the  court  {St.  Louis  v.  Hill,  116  Mo. 
527).  Wliether  a  given  act  is  a  damaging,  is  certainily 
a  judicial  question  for  the  courts. 

The  city  could  not  use  a  street  and  then  when  sued 
defend  on  the  ground  that  it  never  took  it,  and  by  its 
own  determination  bind  the  property-owner.  This  was 
the  law,  constitutional  law,  ten  years  before  the  adop- 
tion of  the  Constitution  of  1875  {Soulard  v.  St.  Louis, 
36  Mo.  546.) 

Bead  the  Constitution  of  Missouri  of  1875  in  the 
light  of  the  Constitution  of  1865  and  1820,  in  the  light 
of  histoiy  of  the  State  on  roads  and  railroads,  and  on 
state  and  municipal  aid  to  roads  and  railroads  and  pub- 
lic improvements,  and  on  the  power  of  the  Legislature 
to  determine  the  benefits  of  the  State  and  the  county 
courts,  and  city  and  town  councils,  to  deteniiine  bene- 
fits to  the  county,  the  city,  the  town.  Read  the  Consti- 
tution of  1875  in  the  light  of  the  municipal  bond  litiga- 
tion against  cities,  towns  and  villages,  and  counties, 
and  the  ])ublic  discontent  as  to  taxes  to  be  raised  to  ]iay 
these  bonds,  and  the  hardships  endured  on  account  of 

16 


242  Law  of  Local  Taxation.  [Chap.  9 

mmiicipal  debts  for  public  improvements,  and  tlie  im- 
prisonment of  county  judges  for  refusing  to  \evj  taxes 
to  pay  judgments  on  municipal  railway  aid  bonds,  and 
the  well-lmown  public  sentiment  of  distrust  in  these 
various  railway  schemes  involving  taxation.  And  dur- 
ing all  this  turmoil,  no  one  ever  doubted  the  benefits  of 
roads  and  railroads.  The  distrust  was  in  the  Legisla- 
ture, in  the  county  court  (cropping  out  in  one  instance 
in  the  tragedy  at  Gunn  City),  in  the  town  and  city 
council.  Read  tlie  Constitution  of  1875  in  the  light  of 
the  decisions  of  the  Supreme  Court  construing  similar 
pro^^sions  in  the  former  constitution.  Local  taxation 
without  the  special,  peculiar,  exceptive  benefit  was  un- 
constitutional. If  the  benefit  was  general,  the  tax  was 
unconstitutional.  That  was  constitutional  law  in  this 
State  at  the  time  the  Constitution  of  1875  was  framed 
and  adopted. 

If  the  benefit  was  generaJ,  the  local  tax  was  uncon- 
stitutional. It  was  at  least  equally  unconstitutional  if 
in  place  of  a  general  benefit  the  property  received  a 
damage.  In  Cole  v.  LaGrange,  the  Supreme  Court  of 
the  United  States  held  that  municipal  bonds  given  to 
encourage  manufacturers  in  the  town,  were  without  au- 
thority and  the  reason  for  so  holding  was  that  there 
was  no  power  to  tax  for  such  purpose.  This  was  the 
assertion  of  a  mere  want  of  authority. 

Before  1875  a  local  tax  for  anything  except  that 
conferring  a  special,  peculiar,  exceptive  benefit  was  un- 
constitutional. 

Grotius  tells  us  that  ''The  property  of  subjects  is 
under  the  eminent  domain  of  the  State,  so  that  the 
State,  or  he  who  acts  for  it,  may  use  and  even  alienate 
and  destroy  such  property,  niot  only  in  cases  of  extreni,e 
necessity— in  which  even  private  persons  have  a  right 
over  the  property  of  others— but  for  the  ends  of  pub- 
lic utility;  to  which  ends  those  that  founded  civil  so- 


Chap.  9]     History  and  Our  Constitutions.  243 

ciety  iiiiust  be  supposed  to  have  intended  that  private 
ends  should  give  away;  but  it  is  to  be  added  that  when 
this  is  done  the  State  is  bound  to  make  good  the  loss." 
\Neuhy  r.  Platte  County,  25  :\Io.  at  p.  260.]  Puffen- 
dorf  is  quoted  from  also. 

We  have  quoted  elsewhere  from  the  Memoirs  of 
the  Turkish  Govenimeut  and  the  lot  in  Constantinople. 
After  making  these  statements  as  to  continental  law, 
our  Supreme  Court,  continuing  say: 

"But  in  Europe  this  principle  is,  in  reference  to 
the  action  of  the  government,  a  mere  moral  rule  im^ 
posing  no  legal  restraint  upon  the  legislative  author- 
ity ;  while  the  American  people,  by  incori30 rating  it  into 
their  Constitution  and  making  it  a  rule  of  constitu- 
tional law  of  superior  obligations  to  the  enactments  of 
the  legislative  department,  have  placed  private  prop- 
erty under  judicial  protection,  against  all  efforts  on 
the  part  of  the  government  to  take  it  from  the  owner, ' ' 
etc.,  .et<?.  [25  Mo.  262.] 

A  general  benefit  made  this  local  tax  unconstitu- 
tional. From  the  issue  of  state  bonds  and  county  bonds 
and  city  and  town  bonds  for  public  improvements,  such 
as  roads  and  railroads,  the  people  of  the  State  became 
well  acquainted  with  what  the  Legislature  would  do  if 
subject  only  to  moral  rules.  They  became  well  ac- 
quainted with  what  the  city  and  town  and  village  coun- 
cil would  do,  even  when  advised  by  a  two-thirds  vote  if 
subject  only  to  moral  rules.  Moral  rules  were  not  a 
sufficient  restraint  on  the  Legislature.  The  moral  rule 
was  good  enough,  but  the  Legislature  would  not  or  did 
not  follow  it.  Moral  rules  were  not  a  sufficient  re- 
straint on  comity  courts  and  city  and  town  and  village 
councils.  Moral  rules  were  good  enough,  but  they  did 
not  follow  them.  Tf,  in  the  opinion  of  the  framers  of 
the  Constitution  of  1875,  moral  rules  were  not  sufficient 
for  public  improvements  of  the  State  to  be  paid  by 


--1-4  Law  of  Local  Taxation.  [Chap.  9 

state  tax;  if  moral  rules  were  not  sufficient  for  the 
couniv  court  for  public  iuiprovements  (railroads  and 
roads) ;  if  moral  niles  were  not  sufficient  for  city  and 
town  council  for  roads  where  all  property  is  taxed— 
was  it  intended  to  be  the  rule  for  street  improvements, 
where  the  abutting  property  alone  is  taxed? 

Read  tlie  Constitution  of  Missouri  of  1875  in  the 
light  of  the  history  of  the  State  on  state  bonds  and 
comity  bonds  and  city  bonds  and  town  bonds,  and  aid 
to  railroads  and  roads,  and  its  restrictions  on  the  crea- 
tion of  debts  by  towns  and  cities. 

''At  the  trial  the  court  refused  to  allow  defend- 
ant's off'er  of  evidence  to  show  that  the  lot  was  not  ben- 
efited by  the  improvement  but  that  its  value  was  de- 
stroyed thereby."  [131  Mo.  p.  22  (bottom),  23  (top).] 
The  judgment  was  affirmed  (A.  D.  1895,  a  suit  on  a  tax- 
bill  for  paving  the  street).  In  1884,  nine  years  after 
the  Missouri  Constitution  was  adopted,  the  Supreme 
Court  had  said  (and  it  must  have  been  constitutional 
law  up  to  that  time)  that  the  property-owner,  in  a  suit 
on  the  tax-bill,  could  "entirely  defeat  a  recovery  by 
overthrowing  the  theory  of  benefits  conferred."  [84 
Mo.  259.] 

In  Sheehan  v.  Good  Samaritan  Hospital,  50  Mo. 
155,  and  in  other  well-considered  cases  in  this  and 
other  states  it  is  decided  that  property  exempted 
"from  taxation  of  every  kind"  is  still  liable  for  assess- 
ments for  local  improvements.  In  the  case  just  cited 
the  court  say: 

' '  The  tax-bill  here  sued  on  is  not  regarded  as  a  tax, 
but  as  an  assessment  for  improvements,  and  is  not  con- 
sidered as  a  burden  but  as  an  equivalent  or  compensa- 
tion for  the  enhanced  value  which  the  property  derives 
from  the  improvement."  [84  Mo.  259.]  Is  this  a  dis- 
tinction ivithout  a  difference? 

All  our  constitutions  in  Missouri  from  1820  to  the 


Chap.  9]     History  and  Our  Constitutions.  245 

present  time  have  required  property  to  be  taxed  ac- 
cording to  its  value.  The  Constitution  of  1820  did  not 
require  all  property  to  be  taxed.  The  Constitution  of 
1875  remedial  that  nxatter  by  declaring  that  ceilain 
proj>erty  shall  be  exempt  and  that  all  other  property 
shall  ])e  taxed  or  rather  that  no  other  property  shall  be 
exempt  by  act  of  the  Legislature.  Assessments  of 
})ro])ei'ty  were  re(piired  to  l>e  uniform  throughout  the 
State.  The  city  or  town  assessment  could  not  exceed 
the  state  assessment.  This  was  to  prevent  a  town  lot 
being  assessed  at  ten  dollars  value  for  state  taxation, 
and  one  hundred  dollars  for  town  taxation.  The  state 
assessment  controlled.  The  town  assessment  could  not 
be  higher  than  the  state  assessment.  It  might  be  equal 
to  it,  but  by  no  means  could  it  exceed  the  state  assess- 
ment. Gentle  reader,  did  you  ever  know  of  a  single 
town  lot  in  any  city,  town  or  village  in  Missouri  since 
the  present  Constitution  was  adopted  (Nov.  30,  1875) 
being  assessed  at  a  lower  value  for  city,  town  or  vil- 
lage taxation  than  the  state  assessment!  They  always 
come  up  to  the  state  assessment ;  they  would  go  beyond 
it  if  they  dared  to  do  so.  The  Constitution  is  in  their 
way.  And  it  is  no  answer  to  say  that  the  state  assess- 
ment is  only  forty  per  cent  of  the  real  value.  Property 
had  never  been  assessed  at  its  real  value.  Tliis  had 
been  the  rule  of  assessment  from  the  time  of  the  admis- 
sion of  the  State  into  the  Union.  This  applied  to  all 
property  alike.  All  ]ieople  are  veiy,  very  poor  when 
the  assessor  comes  around  to  get  the  assessment.  Peo- 
ple have  veiy  little  property  then,  and  that  little  is 
not  worth  anything.  Real  estate  at  that  time  ceases  to 
have  any  value  except  one  merely  nominal.  The  true 
value  is  never  revealed  except  in  case  of  fire  (and  then 
only  to  collect  on  the  fire  policy),  or  in  case  a  railroad 
needs  the  land,  or  kills  the  cow,  or  the  city  or  town 
needs  the  land  for  a  park  or  street  or  boulevard. 


246  Law  of  Local  Taxation.  [Chap.  9 

The  framers  of  the  Constitution  of  1875  knew  this 
to  perfection.  They  were  well  aware  that  for  taxation, 
low  assessments  (far  below  the  real  value)  had  always 
been  made.  The  nile  was  almost  universal.  Everj^body 
had  a  right  to  swear  to  a  lie  and  return  it  to  the  asses- 
sor. The  return  values  have  always  been  low,  very 
low,  scandalously  low.  This  was  well  known  to  the 
framers  of  the  Constitution  of  1875.  They  knew  that 
cities,  towns  and  villages  would  make  assessments 
enormously  high  in  order  to  get  money  to  spend.  Their 
necessities  would  know  no  bounds.  The  largest  tax  is 
one  per  cent.  They  could  double  or  treble  the  assess- 
ment and  get  money  to  spend.  They  can  not  contract 
debts  beyond  five  per  cent  on  assessed  values.  The 
state  assessment  cian  not  be  exceeded.  If  it  were  not 
for  this  constitutional  restriction  every  city,  town  and 
village  would  make  estimate  of  the  amount  of  money 
they  need,  and  then  find  what  sum  that  was  five  per 
of,  and  that  would  be  the  assessed  value  of  the  town. 
The  framers  of  the  Constitution  determined  not  to 
leave  this  means  of  escape.  They  knew  of  the  custom 
of  low  values  for  taxation.  They  knew  that  these  low 
values  for  taxation  had  been  the  rule  in  England  for 
more  than  three  hundred  and  fifty  years  before  they 
framed  this  Constitution. 

Hugh  Latimer,  in  a  sermon  at  Stamford,  about  A. 
D.  1545,  says: 

''When  the  Parliament,  the  high  court  of  this 
realm,  is  gathered  together  and  there  it  is  detennined 
that  everj^  man  shall  pay  a  fifteenth  part  of  his  goods 
to  the  king,  then  commissioners  come  forth,  and  he  that 
in  sight  of  men,  in  his  cattle,  com,  sheep,  and  other 
goods  is  worth  an  hundred  marks,  or  an  hundred  pomid 
will  set  himself  at  ten  pound;  he  will  be  worth  no  more 
to  the  king  but  after  ten  pound.  Tell  me  now,  whether 
this  be  theft  or  no?     He  will  marry  his  daughter  and 


Chap.  U  ]     History  and  Our  Constitutions.  247 

give  with  her  four  or  five  hundred  marks,  and  yet  at 
the  valuation  he  will  be  a  twenty-pound  man."  How 
long  this  sentiment  existed  before  Hugh  Latimer  de- 
nounced it  in  such  scathing  terms,  the  writer  has  no 
means  of  determining,  but  no  one  doubts  that  just  sudi 
conditions  existed  then  in  England  and  exist  yet.  The 
bank  deposits  in  one  city  are  several  times  as  much  as 
the  whole  personal  property  assessment  of  all  the  coun- 
ty. The  assessor  dwarfs  values.  The  framers  of  the 
Constitution  knew  this. 

Read  the  Constitution  of  Alissouri,  adopted  in  1875, 
in  the  light  of  the  histor>^  of  the  State,  the  legal  and 
constitutional  history  of  the  State,  up  to  that  time. 

The  framers  of  the  Constitution  of  Missouri  of 
1875  knew  what  the  people  of  this  State  had  been  doing 
ever  since  the  admission  of  the  State  into  the  Union, 
just  what  Hugh  Latimer,  the  reformer,  so  vigorously 
condemned  350  years  before.  They  knew,  too,  that 
county  courts,  city,  town  and  village  councils  were  to- 
tally unfit  anid  unsafe  persons  to  issue  bonds  or  incur 
debts  for  public  improvements.  Hence,  in  the  new 
Constitution  they  were  limited  in  their  debt  making 
power  to  five  per  cent  of  the  assessed  value  of  the  prop- 
erty. The  framers  of  the  Constitution  well  knew  of 
the  keen,  sharj),  decisive,  over-weening  anxiety  of  city 
and  town  councils  to  spend  money  and  incur  debt.  The 
framers  of  the  Constitution  were  apprehensive  that 
cities,  towns  and  villages  might  be  very  anxious  to  in- 
cur debts  for  public  improvements,  and  this  over-ween- 
ing anxiety  might  prompt  them  to  make  a  very  high  as- 
sessment. The  city  assessment  cannot  exceed  in 
amount  the  state  and  county  assessment.  Gentle  read- 
er, did  you  ever  know  a  city  assessment  to  be  less  than 
that?  The  city  makes  the  assessment  the  highest  pos- 
sible; then  the  city  levies  the  highest  possible  rate.  And 
every  city,  after  making  the  highest  assessment  possi- 


248  Law  of  Local  Taxation.  [Chap.  9 

ble  and  after  le\ymg  the  highest  rate  possible,  has 
nothing  left  to  improve  streets. 

Kansas  City  has  177  miles  of  streets,  including  48 
miles  yet  to  be  condemned  or  dedicated.  This  estimate 
takes  no  accomut  of  alleys.  The  city  can  improve  these 
streets  and  pay  for  such  improvement  in  two  ways: 
first,  out  of  the  general  revenue;  second,  by  tax-bill 
on  abutting  property.  Except  in  front  of  public  squares 
and  in  front  of  parks,  the  city  has  not  paid  for  one 
hundred  yards  of  street  improvement  ini  thirty  years, 
out  of  the  general  revenue. 

It  was  the  boast  of  the  people  of  Missouri,  and  of 
the  framers  of  the  Constitution  of  1875  that  here  the 
private  property  of  the  citizen  was  placed  under  judic- 
ial protection  against  all  efforts  on  the  part  of  the  gov- 
ernment to  wrest  it  from  him,  except  for  public  use 
upon  just  compensation  made,  and  that  private  prop- 
erty here  had  a  protection  wholly  unknown  to  the  le- 
gal systems  of  Europe.  "Private  property  shall  not 
be  taken  or  damaged  for  public  use. ' '  They  supposed, 
really,  that  they  were  in  1875  giving  greater  security 
to  private  property  as  against  the  public  than  had  been 
known  before.  The  power  of  the  Legislature  over  bonds 
and  other  debts  for  railroads  and  other  public  improve- 
ments (including  taxation  resulting  therefrom) ;  the 
power  of  the  county  court,  the  city  council,  the  town 
oouncil  over  railroad  aid  bonds  and  taxation  from  that 
source,  had  been  curtailed  and  finally  taken  away  in 
1875,  By  their  conduct  thus  evinced,  the  framers  of 
the  Constitution  of  1875,  when  they  proposed  this  Con- 
stitution, and  the  people  of  the  State  of  Missouri  when 
they  adopted  it,  did  not  evince  a  very  strong,  abiding 
faith  or  confidence  in  the  morals  of  the  Legislature,  or 
of  the  county  court,  or  the  city  or  town  councils,  in  the 
matter  of  railway  aid  bonds  and  taxation  for  public  im- 
provements. 


Giap.  i>]     History  and  Our  Constitutions.  24:9 

"Local  assessments  are  constitiitioiixil  only  when 
imposed  to  jmy  for  local  imi)rovements  conferring 
special  benefits."  The  state  Legislature,  the  city,  to^m 
and  village  comicil,  could  not  then  detennine  these 
special  benefits.  That  was  a  rule  of  constitutional  law 
then.  It  was  not  intended  by  the  franiers  of  the  Con- 
stitution of  1875  when  they  proix)sed  this  Constitution ; 
it  was  not  intended  by  the  people  of  the  State  when 
they  adopted  it,  to  convert  the  boasted  .\jnerican  consti- 
tutional rule  into  the  merely  moral  rule  of  the  consti- 
tutions of  Europe.  "Thou  shalt  not  steal,"  was  in- 
tended to  apply  to  the  public  as  well  as  to  individuals. 
It  was  not  intended  to  convert  that  connnand  into  a 
mere  moral  rule.  That  boasted  provision  of  the  Con- 
stitution has  now  become  a  mere  moral  inile  for  the 
guidance  of  the  thief,  the  public,  the  city,  town  or  vil- 
lage council. 

The  people  of  the  State,  by  the  Constitution  of 
1875,  decided  that  our  state  Legislatures,  our  county 
courts,  our  city,  town  and  village  councils,  were  unfit 
and  imsafe  depositaries  of  this  power— this  unlimited, 
limitless  power — to  contract  debts  and  levy  taxes  to 
build  roads  and  railroads. 

The  depositaries  of  this  power,  the  legislatures, 
the  comity  courts,  the  city,  town  and  village  councils, 
were  largely  made  up  (as  would  seem  to  be  the  general 
concensus  of  opinion)  of  knaves,  and  those  not  knaves 
were  mostly  fools,  and  both  classes  were  unsafe  depos- 
itaries of  this  power,  and  hence  it  was  taken  away.  And 
it  was  never  intended  to  allow  a  power  worse  in  its  con- 
sequences to  remain  with  the  same  distrusted  deposi- 
taries to  be  exercised  against  abutting  lots  on  a  street 
for  building  the  road  or  street.  Some  comparisons  fol- 
low. 


CHAPTER  10. 


SOME  COMPARISONS. 


I  presume  every  one  is  acquainted  with  the  history 
of  Missouri  under  the  Constitution  of  1820,  and  subse- 
quent constitutions  of  this  and  other  states  on  the  ques- 
tion of  aidinig  public  imi>roveinents.  In  1865  Missouri 
ceased  to  issue  state  bonds  for  public  improvements. 
This  State  then  ceased  to  loan  the  state  credit  in  aid  of 
public  improvements.  The  people  of  the  State  in  1865 
by  her  Constitution  put  a  limit  on  the  power  of  the 
Legislature  to  authorize  cities,  towns,  villages  and 
counties  to  aid  railroads  and  roads.  The  power  to  aid 
railroads  and  roads,  and  take  stock  in  railroads  and 
roads,  was  taken  away  entirely  from  the  state  Legisla- 
ture. The  county  court  for  the  county  and  the  unor- 
ganized strip  of  land,  the  city,  town  and  village  coun- 
cil could  no  longer  he  authorized  to  make  bonds  or  in- 
cur debts  for  public  improvements  or  in  aid  of  public 
improvements  unless  there  was  the  two-thirds  vote. 

In  ten  years  that  became  very  unsatisfactory.  Mu- 
nicipalities became  largely  in  debt  for  public  improve- 
ments, perhaps  never  made,  and  in  1875  Missouri  by 
her  Constitution  of  that  year  took  away  that  power  en- 
tirely, so  that  after  that  year,  no  difference  what  might 
be  the  value  of  a  railroad  to  a  county,  city,  town  or  vil- 
lage, bonds  could  not  be  issued  for  stock  in  railroads  or 
to  lend  credit  to  railroads.  The  municipal  bond  was 
valid  in  the  hands  of  a  purchaser  for  value  without  no- 
tice, but  the  tax-bill  is  valid  in  the  hands  of  the  original 
wi'ongdoer  who  takes  a  contract  to  violate  the  Consti- 
tution— to  do  that  which  the  Constitution  says  shall  not 

(250) 


Chap.  10]  Some  Comparisons.  251 

be  done  (Private  property  shall  not  be  taken  or  dam- 
aged for  i)ublic  use  without  just  com])ensation),  and 
then  this  statute  law  authorizes  a  sale  of  the  damaged 
proj>erty  to  pay  the  contract  price  to  do  the  damage,  or 
the  contract  is  good  if  there  is  no  benefit  or  even  if 
there  be  a  damage.  No  court  has  ever  yet  held  valid  a 
municipal  bond  given  for  performance  of  an  act  pro- 
hibited by  the  Constitution.  The  doctrine  is  monstrous. 
The  Czar  of  Hell,  all  the  arch-fiends  and  devils  of  Hell 
combined  could  not  do  worse ! 

In  Zoeller  v.  Kellogg,  4  Mo.  App.  163,  we  do  not 
know  what  the  value  of  the  land  was  before  the  work 
was  done  for  which  the  tax-bills  were  issued,  but  after 
the  improvement  it  was  worth  $1,025,  while  the  tax-bill 
was  $1,688.  Here  is  the  actual  value  found  by  the 
court,  $1,025.  This  tax-bill  is  one  hundred  and  sixty- 
three  per  cent  of  the  value  of  the  land  and  of  all  value 
added  by  the  improvement.  The  reader  has  never 
known  or  heard  of  any  county,  city,  town  or  village  is- 
suing railroad  bonds  to  the  extent  of  one  hundred  and 
sixty-three  \)eY  cent  of  the  actual  value  of  all  the  real, 
personal  and  mixed  property  of  all  the  inliabitants  of 
the  entire  county,  city,  town  or  village.  If  we  sup|X>se 
the  land  was  benefited  one  hundred  ]ier  cent,  then  the 
lot  was  worth  $512.50,  and  benefit  $512.50,  making  the 
$1,025  value.  After  the  contractor  received  one  hun- 
dred per  cent  of  the  value  of  the  land  and  one  hun- 
dred per  cent  of  the  value  of  the  benefit,  he 
ought  to  have  been  satisfied,  but  he  was  not. 
He  got  judgment  for  sixty- three  ]^er  cent  more 
on  land  and  benefit.  This  rate  never  was  ex- 
ceeded or  eipialed  by  any  city,  town  or  village  in  Mis- 
souri or  in  Kansas  or  Colorado  (not  even  by  any  coun- 
ty, city,  town  or  village  laid  off  am'wliere  in  the  prairie 
grass,  or  in  the  buffalo  grass,  or  in  the  sage  brush  coun^ 
ti-^',  or  in  the  alkali  districts).    I  do  not  believe  that  the 


252  Law  of  Local.  Taxation.  [Chap.  10 

framers  of  the  Constitution  of  1875  ever  intended  that 
this  "tax  on  benefits"  should  ever  equal  or  exceed  one 
hundred  per  cent  of  the  value  of  the  land  and  one  hun- 
dred per  cent  of  the  value  of  the  benefit  added.  We 
have  seen  that  the  same  rate  of  taxation  extended  to 
the  entire  State  would  absorb  all  the  real,  personal  and 
mixed  property  of  the  State  (not  a  man  in  the  State 
would  have  a  shirt  on  his  back)  and  then  the  contrac- 
tor, after  he  had  gotten  all  the  real,  personal  and  mixed 
property  in  tlie  State,  would  be  short  (poor  fellow!) 
567  millions  of  dollars.  The  state  Legislature  never  is- 
sued bonds  to  this  extent,  nor  did  any  county,  city  or 
town,  nor  was  credit  ever  loaned  to  that  extent.  One 
instance  occurred  in  Kansas  City  where  the  tax  bill 
was  $700  and  the  lot  was  worth,  after  all  inaprovenuents 
were  made,  $400.  This  case  was  instanced  in  1905,  be- 
fore the  thirteen  free-holders  framing  a  new  charter 
for  Kansas  City.  Here  was  a  tax  of  one  hundred  and 
seventy-five  per  cent  on  the  original  value  of  the  lot, 
with  one  hundred  and  seventy-five  per  cent  of  the  bene- 
fit added.  It  was  not  stated  what  the  lot  was  worth  be- 
fore the  work  was  done  which  occasioned  this  presump- 
tive benefit  of  one  hundred  and  seventy-five  i3er  cent  of 
original  value  with  one  hundred  and  seventy-five  per 
cent  of  the  benefit  added.  The  State  of  Missouri  never 
made  such  a  fatal  mistake  in  issuing  railroad  aid  bonds 
or  lending  its  credit  for  public  improvements.  No 
county,  city,  town  or  village  in  this  or  any  other  state 
or  territory  ever  loaned  credit  or  issued  public  im- 
provement bonds  to  that  damaging  extent. 

Besides,  any  one  at  all  coversant  with  public  im- 
provements in  any  city  will  recognize  the  estimate  of 
$700  as  too  low.  If  we  estimate  the  comer  lot  as  25  by 
150  feet,  then  we  have  175  feet  front  to  pave  at  five  dol- 
lars per  front  foot,  185  feet  curbing  at  50  cents,  185  feet 
sidewalk  at  $1,  sewer  $40,  trees  $12.50,  total  $1,200,  in 


Chap.  10]  Some  Comparisons.  253 

place  of  $700.    Then  the  lot  was  worth  $400.    Then  the 
lot  was  worth  originally  $8(X)  less  than  nothing.      It 
was  $800  below  zero,  and  that  was  a  very  cold  day  for 
that  lot-owner.    A  lawyer,  even,  would  not  want  to  take 
for  his  fee  a  lot  worth  $800  below  zero.     Put  the  lot  up 
and  sell  it  for  what  it  is  worth  and  it  will  pay  thirty- 
three   and   one- third   per   cent   of   the    special   taxes 
against  it,  not  allowing  anything  for  costs  of  sale,  ab- 
stract, certificates  of  judgments.     Pay  these  costs  and 
the  property-owner  will  get  nothing  and  the  tax-bill 
holders  will  get  less  than  thirty  per  cent  of  the  tax- 
bills.    The  gentle  reader  must  not  forget  this  tax  is  no 
burden  on  the  real  estate  owner,  but  just  tliink  of  the 
poor  tax-bill  holder  who  gets  only  thirty  i^er  cent  of 
his  money!    Before  the  board  of  freeholders  in  Kan- 
sas City  it  was  stated  that  "countless  numbers  of  cor- 
ner lots  have  been  eaten  up  with  special  taxes,  and  the 
owners  have  given  them  up  rather  than  make  the  pay- 
ments assessed  against  them  for  improvements."    And 
this  was  true  then,  and  is  now,   in  the  whole   United 
States.    In  the  case  above  referred  to,  where  the  public 
improvements  are  really  $1,200  in  place  of  $700,  take 
the  corner  lot  and  the  next  four  lots,  25  by  150  feet 
making  125  feet  by  150  feet.  The  cost  of  the  public  im- 
provement will  be,  at  this  rate,  $1,800  for  the  five  lots. 
If  we  count  the  corner  lot  as  worth  $400,  this  will  leave 
$1,400  to  be  paid  by  four  lots,  or   three   hundred   and 
fifty  dollars  each.  If  an  improved  corner  is  worth  $4(X>, 
the  improved  inside  lots  ought  to  be  worth  $350  each. 
The  contractor  will  thus  be  made  whole  except  in  the 
matter  of  attorneys'  fees,  and  it  will  be  necessary  to 
give  the  contractor  another  25  foot  lot,  and  then  with 
rigid  economy  the  contractor  might  come  out  even.  As 
to  the  owners  of  the  six  lots  this  tax  is  no  burden.    But 
let   us  make   further   comparisons.     Public   improve- 
ments on  comer  150  feet  will  cost  $18  per  front  foot. 


254  Law  of  Local  Taxation.  [Chap.  10 

The  assessed  values  of  all  lands  in  Kansas  City  exclus- 
ive of  improvements  thereon,  have  run  thus  for  the 
years  indicated : 

A.  D.  1904  $36,641,430 

A.  D.  1900 $36,159,800 

A.  D.  1886  $31,169,190 

The  streets  in  Kansas  City  are  thus  in  length: 
Streets  dedicated  or  condemned,  128.7  miles ;  streets  to 
be  dedicated  or  condemned,  48  miles;  total,  in  round 
numbers,  177  miles.  Nmnber  of  tracts  in  Kansas  City, 
73,020. 

Average  assessed  values  were  thus :  1904,  assess- 
ed value,  $36,641,430,  or  $502  per  tract;  1900',  assessed 
value,  $36,159,800,  or  $496  per  tract,  an  increase  in 
value  in  four  years  equal  to  one  and  thirteen  sixty-sec- 
onds of  one  per  cent  or  seventy-five  two  hundred  and 
forty-eighths  of  one  per  cent  per  year. 

Now  let  us  count  the  cost  of  public  improvements 
for  Kansas  City.  Counting  paving  at  five  dollars  per 
front  foot,  sewers  at  one  dollar  and  fifty  cents  per 
front  foot,  sidewalks  at  one  dollar  per  front  foot,  and 
curbing  at  fifty  cents,  the  cost  will  be  thus : 
Paving. . .  .$9,329,760.  25.7  per  cent  of  assessed  value. 
Sewers. . .  .$2,798,928,  7.6  per  cent  of  assessed  value. 
Curbing.  . .  .$932,976.  2.54  per  cent  of  assessed  value. 
Sidewalks. $1,865,952.  5.08  per  cent  of  assessed  value. 
Total  cost .  $14,927,616.  40.7  per  cent  of  assessed  value. 
This  counts  nothing  for  grading. 
If  we  count  these  public  improvements  to  last  ten 
years,  then  we  have  a  tax  of  4.07  per  cent  per  annum. 

Add  state  tax 15  per  cent 

County  tax 35  per  cent 

School   1.00'  per  cent 

General  city  tax 1.00  per  cent 

Public  improvements 4.07  per  cent 

Total  tax 6.57  per  cent 


Chap.  10]  Some  Compakisons.  255 

The  improveinont  is  paid  for  in  advance.     If  we 
count  interest  at  four  per  cent  on  the  cost  of  the  im- 
provement, for  it  lasts  ten  years  and  is  paid  for  in  ad- 
vance, we  must  add  1.63  per  cent  to  above  4.07  per  cent 
making  an  annual  tax  on  assessed  v^alue  of  5.7  per  cent 
as  taxes  on  the  assessed  values  of  real  estate,  exclusive 
of  improvements  and  not  including  general  city  taxes 
or  general  state  and  county   taxes.     Pave   the   alleys 
with  the  same  material  as  the  street  and  the  cost  will 
be  $950,400,  making  a  total   cost  of   public  improve- 
ments, exclusive  of   grading   and   parks,    $15,878,016. 
This  is  forty-three  and  one-third  per  cent  of  the  assess- 
ed valuation  of  all  the  land  in  Kansas  City,  exclusive 
of  improvements  thereon.     Counting  ten  years  as  the 
life  of  a  pavement,  this  is  four  and  one-third  per  cent 
per  year.     This  payment  is  made  in  advance,    and 
counting  interest  at  four  per  cent  per  annium  makes  for 
the  ten  years  seventeen  and  one-third  i^er   c^nt   addi- 
tional, or  about  sLxty-one  per  cent  for  ten  years,  or  six 
and  one-tenth  per  cent  per  annum  on  the  assessed  value 
of  lands  exclusive  of  improvements  thereon.    This  does 
not  include  any  park  taxes  or  grading  taxes  or  benefits 
to  pay  for  damages   for  grading.     Adding  state  tax, 
county  tax,  school  tax  and  general  city  tax  makes  a  land 
tax  of  eight  and  one-half  per  cent  per  annum.     This 
leaves  out  the  county  bond  tax.    This  is  nearly  fifty- 
seven  times  as  much  as  the  state  tax.    Under  section 
12,  article  10  of  the   state   Constitution   of   Missouri, 
adopted  in  1875,  the  greatest  amount  of  debt  that  can 
in  any  event  be  incurred  is  five  per  cent  of  the  assessed 
value  of  all  the  property  in  the  county,  and  that  must 
be  paid  by  a  sinking  fund  pro\nded  for  in  twenty  years, 
or  one-fourth  of  one  per  cent  per  annum.  Here  is  a  tax 
per  annum  thirty-four  times  as  much.    At  the  end  of 
ten  years  all  the  public  improvements  are  worn  out 


256  Law  op  Local  Taxation.  [Chap.  10 

and  they  must  be  renewed  at  the  same  cost.  Municipal 
bonds  never  made  such  high  taxes. 

You  will  have  noticed  that  the  assessed  value  of 
land,  exclusive  of  improvements  thereon,  was  for  the 
year  1904,  $36,641,430;  1900,  $36,159,800.  Increase  in 
value  for  the  four  years,  $481,630,  or  $120,407  per  year. 
This  would  improve  5.7  miles  of  street  in  four  years  or 
1.4  miles  per  year.  At  that  rate  of  increase  in  value,  it 
would  take  127  years  to  put  in  the  public  improvements 
in  Kansas  City  which  would  last  ten  years.  Kansas 
City  had  73,020  tracts  of  land  in  1904.  The  average 
value  per  tract  in  1904  was  $502,  and  in  190O  it  was 
$496,  being  six  dollars  increase  in  value  per  tract  for 
four  years,  or  $1.50  per  tract  per  year.  We  have 
spoken  of  the  $1,200  special  taxes  against  the  comer  lot 
25  by  150  feet.  The  average  increase  in  value  per  tract 
per  year  being  $1.50,  it  would  take  800  average  tracts 
to  pay  the  special  taxes  on  this  lot,  or  it  would  require 
all  this  average  increase  in  value  for  800  years  to  pay 
these  special  taxes. 

The  per  cent  of  increase  in  four  years  is  one  and 
thirteen  sixty-secondths  per  cent  for  four  years,  or 
seventy-five  two  hundred  and  forty-eighths  of  one  per 
cent  per  annum.  This  is  less  than  one-third  of  one  per 
cent.  We  have  seen  that  all  Kansas  City  can  be  im^ 
provedi  with  the  improvements  required  for  about  six- 
ty-one per  cent  for  ten  years,  or  six  per  cent  per  year 
on  the  assessed  value.  In  the  minds  of  the  framers  of 
the  Missouri  Constitution  of  1875,  and  in  the  minds  of 
the  people  of  the  State  who  adopted  that  Constitution, 
a  debt  to  be  paid  by  general  taxation  could  not,  under 
any  circumstances,  be  contracted  exceeding  five  per 
cent  of  the  assessed  value  of  all  the  property  in  the 
county,  city  or  town,  and  that  was  payable  in  twenty 
years  by  a  tax  levied  each  year  or  one-fourth  of  one 
per  cent  per  year,  yet  here  is  a  tax  of  six  per  cent  per 


Chap.  10]  Some  Comparisons.  257 

year  or  twenty-four  times  as  muoli.  Beyond  onie-fourth 
of  one  per  cent  per  year  for  a  debt  was  a  burden  not  to 
be  endured  under  any  circumstances  whatever,  and  yet 
six  per  cent  per  year  is  not  a  burden.  Take  lot  1  in 
block  2  in  Coleman  Place  in  Kansas  City.  Assessed 
value  for  1904-  was  $486.  Assessed  value  for  1902  was 
$460.  Special  taxes  one  year  $1,125.  A  similar  tax  on 
the  other  real  estate  of  Kansas  City,  exclusive  of  im- 
provements thereon,  would  i:)roduce  the  sum  of  $85,- 
496,333.  Four  per  cent  of  this  sum  would  be  $3,419,853, 
enough  to  pay  for  all  our  parks.  This  lot  was  34  by  132 
feet,  making  166  feet  front.  This  would  be  only  seven 
dollars  per  foot  front,  i.  e.,  counting  166  feet  as  the 
front ;  but  $33  per  front  foot  if  we  count  34  feet  as  the 
front.  This  does  not  include  park  taxes.  This  lot  was 
worth  $742  below  zero,  or  twenty-two  dollars  and  fifty 
cents  per  front  foot  below  zero.  This  tax  is  no  burden. 
In  case  all  the  property  (real  estate)  in  Kansas  City 
should  be  improved  like  this  real  estate  in  Coleman 
Place,  then  Kansas  City  would  be  short  on  the  tax  on 
lands,  exclusive  of  improvements,  $48,854,903. 

Take  lot  56,  Windsor,  in  Kansas  City.  The  lot  is 
30  by  150  feet  and  on  a  boulevard.  It  is  a  comer.  As- 
sessed value  of  land  exclusive  of  improvements  for 
1904  was  $720.  The  special  taxes  levied  and  paid  prior 
to  1904  were  about  $1,950.  They  came  in  rapid  succes- 
sion. Put  a  similar  tax  on  all  land  in  Kansas  City  and 
it  would  produce  from  land  values  alone  $99,237,206. 
The  gentle  reader  must  bear  in  mind  that  this  tax  is  no 
burden.  This  tax  would  be  $62,595,776  more  than  the 
entire  assessed  value  of  all  the  land  in  Kansas  City,  ex- 
clusive of  improvements.  If  we  say  the  land  was  as- 
sessed at  forty  per  cent  of  its  real  value,  if  the  contrac- 
tor takes  the  land  at  its  real  value  he  will  be  short 
$2,633,631.  And  the  poor  contractor  will  have  to  lose 
it! 

17 


258  Law  of  Local  Taxation.  [Chap.  10 

See  how  this  law  operates  on  comer  lots.  We  pro- 
ceed on  the  lines  already  suggested.  Take  thirty-two 
comers.  This  would  be  eight  blocks  on  each  side.  Im- 
prove sixteen  of  these  corner  lots  with  a  sixteen-hun- 
dred  dollar  house.    Then  we  have 

16  houses  at  $1,600,  equal  to $25,600 

16  lots  improved  at  $400,  each  equal  to  ....   6,400 
16  lots  unimproved  at  $400,  each  equal  to  .  .   6,400 

Total  value  $38,400 

If  the  tax-bills  are  $1,200  on  each  lot  the  contrac- 
tor comes  out  even.  The  owners  of  the  vacant  lots  lose 
their  lots  with  original  value  and  added  value,  and  the 
owners  of  the  houses,  costing  $1,600  each,  lose  their 
houses  worth  $25,600,  and  their  lots  worth  $400  each, 
equal  to  $6,400.  The  contractor  lost  $800  on  each  va- 
cant lot  of  the  sixteen,  and  he  made  up  his  loss  by  the 
sixteen  houses  at  $1,600  each. 

Take  lot  56,  Windsor.  Land  is  assessed  at  $720, 
with  all  benefits  added,  the  special  taxes  being  $1,950. 
If  the  owner  puts  up  a  house  worth  $1,230,  then  the 
land  ($720)  and  house  ($1,230)  equal  $1,950.  The  tax- 
bill  holder  gets  one  hundred  per  cent  of  the  original 
value  of  the  land  and  one  hundred  per  cent  of  the  in- 
creased value  of  the  land  and  one  himdred  per  cent  of 
the  value  of  the  houses  and  the  public  get  the  highly 
costly  street  for  nothing.  *'Tell  me  whether  this  be 
theft  or  no!" 

In  the  actual  case  above  cited,  and  the  supposed 
case,  the  property  was  not  damaged.  There  was 
some  "benefit,"  but  the  original  value  of  the  land  and 
the  houses  and  the  benefit  all  added  together  were  less 
than  the  tax-bills. 

The  question  is  one  solely  of  power.  If  the  power 
to  do  the  forbidden  thing  exists,  then  the  question  is 
settled.  To  say  that  the  power  is  abused  is  to  beg  the 
question.     A  power  that  does  not  exist    cannot    be 


Chap.  10]  Some  Comparisons.  259 

abused.  Every  legislative  enactment  made  without 
constitutional  power  or  against  a  prohibition,  is  and 
ought  to  be  void. 

We  have  seen  that  a  $2,750  damage  to  Mrs.  Smith's 
lot  was  a  three-hundred-dollar  benefit  to  her  and  her 
lot. 

If  they  will  only  hang  a  few  property-owners,  the 
benefits  to  such  property-owners  so  hung  would  be  am- 
ply sufficient  to  pay  off  the  national  and  state  debts. 


CHAPTElR  11. 


PUETHEH  CHANGES. 


Within  the  last  ten  years  further  fundamental 
changes  have  occuiTed  in  the  law  of  loca'  taxation.  Lo- 
cal benefit  was  formerly  regarded  as  the  sole  ground  or 
authority  for  the  local  tax.  The  Missouri  Supreme 
Court  state  the  principles  on  which  this  tax  is  founded, 
through  Judge  Leonard,  in  Lockiuood  et  al.  v.  St.  Louis 
24  Mo.  20  (A.  D.  1856),  in  a  suit  to  enjoin  the  collection 
of  a  tax  of  one-half  of  one  per  cent  to  build  sewers  in  a 
portion  of  St.  Louis,  under  an  act  of  the  T legislature  of 
Missouri.  After  observing  that  these  taxes  prevailed 
under  the  English  Law,  the  court  say : 

"Their  intrinsic  justice  strikes  every  one.  If  an 
improvement  is  to  be  made,  the  benefit  of  which  is  lo- 
cal, it  is  but  just  that  the  property  benefited  should 
bear  the  burden.  A^^iile  the  few  ought  not  to  be  taxed 
for  the  benefit  of  the  whole,  the  whole  ought  not  to  be 
taxed  for  the  few.  A  single  township  in  a  county 
ought  not  to  bear  the  whole  county  expenses,  neither 
ought  the  whole  county  to  be  taxed  for  the  benefit  of  a 
single  township;  and  the  same  principles  require  that 
taxation  for  a  local  object,  beneficial  only  to  a  portion 
of  a  town  or  city,  should  be  upon  that  part  only.  Gen- 
eral taxation  for  a  mere  local  purpose  is  unjust;  it  bur- 
dens those  who  are  not  benefited,  and  benefits  those 
who  are  exempt  from  the  burden. ' ' 

A  local  tax  which  was  only  a  general  benefit  was 
unconstitutional.  When  the  Constitution  was  changed 
so  as  to  prohibit  damaging  private  property  for  pub- 
lic use  as  well  as  taking,  the  tax  became  valid  if  it  was 

(260) 


Cba]).  11 J  Further  Changes.  261 

for  work  which  occasioned  a  do  mage.  The  si)ecial,  pe- 
culiar, exceptive  benefit  ceased  to  be  nec^ssaiy  to  tlie 
constitutional  validity  of  the  tax.  A  general  benefit 
ceased  to  render  the  tax  unconstitutional.  If  there  was 
a  general  damage,  the  tax  was  constitutional.  Now  the 
latest  determinations  are  that  the  courts  can  not  inquire 
into  the  question.  The  legislative  determination  is 
conclusive. 

'Must  comi)ensation  for  taking  as  well  as  damag- 
ing private  property  for  public  use  shall  be  ascertain- 
ed by  a  jury  or  board  of  commissioners. ' '  In  requiring 
a  jury  a  judicial  proceeding  seems  to  be  aimed  at  but 
we  now  proceed  to  show  by  what  steps  this  portion  of 
the  Constitution  of  Missouri  is  unconstitutional  ac^^ord- 
ing  to  the  Constitution  of  Missouri,  and  courts  and  jur- 
ies aod  commissioners  are  dispensed  with.  The  whole 
power  is  in  the  Legislature  (common  council  of  cities) 
and  the  legislative  determination  is  conclusive.  This 
determination  ought  to  be  judicial  and  when  such  duty 
is  devolved  on  the  Legislature  it  is  made  to  tiy  to  ac- 
complish impossibilities. 

Let  us  notice  some  inconsistencies  into  which  we 
are  driven  by  this  theor>^  of  the  conclusiveness  of  this 
legislative  determination  of  benefits,  both  as  to  fact  and 
amount. 

In  every  State  of  the  Union,  streets,  avenues  and 
highways  may  be  improved  at  the  expense  of  the  abut- 
ting property,  even  if  the  improvement  be  no  benefit  to 
the  property  taxed,  or  even  a  damage  forbidden  by  the 
Constitution.  In  such  case,  notwithstanding  the  posi- 
tive prohibition  against  the  work  occasioning  the  dam- 
age, the  damaged  property  liiay  be  taxed  to  the  entire 
extent  of  the  whole  value  of  the  land  and  all  buildings 
thereon. 

Look  at  the  inconsistencies.  It  will  plainly  appear 
in  mathematics  that  the  tea  tax  of  the  Revolution  was 


262  Law  of  Local  Taxation.  [Chap.  11 

(0)  zero  and  this  tax  infinity  8.  We  have  the  relation 
between  zero  and  infinity. 

In  State  of  Missouri  ex  rel.  v.  Le/fingivell  et  al., 
54  Mo.  458  at  473,  Wagner,  Judge  (in  an  opinion  con- 
curred in  by  Judges  Vories  and  Adams,  Judge  Nap- 
ton  not  sitting  and  Judge  Sherwood  absent),  says : 

"In  the  construction  of  the  Constitution  I  am  un- 
willing to  apply  to  it  those  elastic  i^rinciples  which  will 
make  it  extend  any  required  length  to  accomplish  an 
end  or  purpose.  Unless  some  regard  is  paid  to  the  in- 
junctions of  our  organic  law,  written  constitutions  of 
government  will  be  regarded  as  of  no  value  and  the  ex- 
periment of  setting  a  boundary  to  capricious  and  arbi- 
trary power  will  be  a  complete  failure."  Again  con- 
tinuing, the  same  judge  says :  ' '  Nothing  is  better  set- 
tled than  that  special  taxation  for  objects  that  are  gen- 
eral and  public  is  illegal."  Again,  page  475:  ''The 
Constitution  has  wisely  erected  a  barrier  against  this 
exorbitant  ji^ower,  and  there  is  a  time  in  the  tide  of  this 
special  taxation  when  it  must  be  said,  thus  far  shalt 
thou  go  and  no  farther." 

"Local  assessments  are  constitutional  only  when 
imposed  to  pay  for  local  improvements  conferring 
special  benefits."  These  are  the  words  of  the  same 
judge  in  the  same  opinion,  almost  in  the  same  sentence. 
It  was  certainly  intended  to  be  affirmed  by  the  court 
that  there  was  then  (in  the  year  A.  D.  1873)  a  consti- 
tutional barrier  against  local  taxation.  Wliere  is  it 
now?  We  had  it  in  1873.  What  has  become  of  it? 
AVhat  clause  or  provision  in  the  Constitution  of  Mis- 
souri in  1875  removed  this  barrier?  Was  it  ever  in- 
tended to  change  the  language  of  the  court  so  as  to  read 
thus:  "Local  assessments  are  constitutional  only  when 
imposed  to  pay  for  local  improvements  conferring 
special  damages. "  If  by  fraud,  accident  or  mistake  the 
work  for  which  a  special  tax-bill  is  issued  should  be  a 


Chap.  11]  Further  Changes.  263 

special,  peculiar,  exceptive,  benefit  or  a  general  bene- 
fit, or  if  it  should  be  absolutely  neutral,  then  the  tax- 
bill  is  void ;  but  it  is  a  valid  tax  if  the  work  occasion  a 
special  damage  (as  for  instance  $?,750  to  Mrs.  Smith, 
that  being  her  adjudicated  damage  for  which  she  had 
to  pay  $300  to  the  contractor  who  did  the  damage). 
Say  tlie  court  througli  Adams,  J.,  at  page  477 : 

"The  question  in  regard  to  taxing  a  particular  lo- 
cality for  general  purposes,  is  sufiieiently  discussed  in 
the  opinion  under  review.  Private  property  cannot  be 
taken  for  public  use  without  just  compensation.  Spec- 
ial benefits  cannot  form  any  part  of  such  compensation 
unless  they  attach  to  and  become  a  part  of  the  taxed 
property.  The  phrase  'special  benefits'  is  a  misnomer 
as  applied  here.  A  lot-holder  has  a  property  interest 
or  easement  in  the  adjoining  street  independent  of  the 
general  public,  and  the  improvement  of  the  street  may 
be  a  special  benefit  or  an  absolute  injury  to  his  lot.  If 
it  be  a  benefit  he  must  pay  for  it,  and  a  special  tax  may 
be  levied  on  his  lot  for  that  purpose.  But  adjacent 
property-holders  can  have  no  easement  or  proi^erty 
right  whatever  in  a  park.  Their  interest  is  precisely 
the  same  as  all  other  citizens,  and  a  tax  upon  them  is 
only  a  thin  guise  for  confiscating  their  property  with- 
out any  just  compensation." 

Such  a  tax  was  then  unconstitutional ;  what  makes 
it  constitutional  now?  I  am  aware  of  what  was  said  in 
Kansas  City  v.  Ward,  134  Mo.  172,  at  178-9.  That  case 
admits  that  there  can  be  no  local  tax  for  a  park  unless 
there  is  a  special  benefit  to  the  land  taxed.  But  in  this 
latter  case  the  court  say  the  person  whose  land  is  ben- 
efited by  a  park  must  pay  the  benefit  tax,  and  then  he 
has  no  interest  in  the  ]iark  he  has  in  part  paid  for.  Pub- 
lic parks  are  a  local  affair  almost  exclusively.  Tlie  pul>- 
lic  have  no  interest  in  them  ;  it  is  a  matter  of  very  small 
concern.  The  courts  and  juries  here  have  been  required 


'264  Law  of  Local  Taxation.  [Chap.  11 

to  estimate  the  value  of  each  park  to  the  public  in  gen- 
eral, and  this  has  to  be  paid  first  and  then  special  ben- 
efits to  each  parcel  of  land  is  ascertained  and  assessed 
on  the  land.  Public  parks  are  here  worth  only  a  dollar 
each.  Boulevards  one  dollar  each.  They  cost  more, 
but  that  is  all  they  are  worth  to  the  city.  It  will  take 
two  or  three  parks  to  pay  for  your  Christmas  turkey. 
One  live  hog  in  the  Kansas  City  market  at  the  stock 
yards  is  worth  more  than  all  the  parks  in  Kansas  City 
and  St.  Louis,  and  the  hog  would  be  a  scrub  at  that. 
Think  of  the  small  value  the  city  or  public  get.  A 
dead  cholera  hog  is  worth  more  to  the  dead-animal  man 
than  any  park  or  boulevard  in  Kansas  City  and  St. 
Louis.  A  sow  and  pigs,  even  if  they  are  Arkansas  wind- 
splitters,  are  worth  more  than  all  the  boulevards  of 
Kansas  City  and  St.  Louis. 

But  even  according  to  the  case  of  Kansas  City  v. 
Ward,  supra,  there  must  be  a  benefit  special,  peculiar, 
exceptive.  It  is  not  said  here  that  the  Legislature  can 
determine  the  fact  and  amount  of  benefit.  That  must 
be  done  by  court  and  jnry.  ''A  lot-holder  has  a  prop- 
erty interest  or  easement  in  the  adjoining  street  w- 
depe-ndent  of  the  general  public,  and  the  improvement 
of  the  street  may  be  a  special  benefit  or  an  absolute  in- 
juiy  to  his  lot."  I  believe  the  court,  in  Kansas  City  v. 
Ward,  did  not  intend  to  overrule  this  portion  of  the 
opinion. 

The  improvement  of  the  street  may  be  a  special 
benefit  or  an  absolute  injury  to  his  lot.  It  was  not  then 
generally  known  among  jurists  and  property-owners 
that  the  legislative  determination  to  make  a  given  pub- 
lic improvement  was  conclusive  on  the  property-owner 
that  it  was  a  benefit,  and  of  course  could  not  be  an  in- 
jury. In  place  of  being  ''damnum  absque  injuria,"  it 
was  a  benefit.  Here  are  two  interests :  the  public  in- 
terest and  the  private  interest.    These  interests  may  be 


Chap.  11]  Further  Changes.  265 

in  conflict.  What  b<^nefits  one,  may  damage  the  other, 
even  if  it  be  ''damnum  absque  injuria"  as  to  the  indi- 
vidual. Here  are  two  necessities  for  consideration,  tlie 
public  necessity  and  the  ])rivate  necessity.  The  prop- 
erty-owner ouglit  to  be  left  free  to  improve  his  riglit  of 
way  appurtenant  to  his  land.  He  may  want  that  way 
smooth  and  level,  or  steep  to  throw  off  the  water.  Let 
him  judge  of  his  own  necessities  and  supply  them  as 
he  deem,s  best.  At  the  time  of  this  decision  (54  Mo. 
supra)  it  was  not  supposed  that  a  local  tax  could,  with- 
out the  owner's  consent,  be  levied  on  the  damaged 
property  to  pay  for  the  work  of  damaging  the  property. 
The  ])ublic  should  l)e  left  free  to  determine  what  is  nee- 
essary^  for  the  public,  but  it  ought  not  to  be  allowed  to 
determine  what  is  a  necessity  to  the  individual,  either 
to  his  house  or  the  road  or  way  to  get  to  it.  But  this 
law  makes  the  common  council  agent  for  the  public  and 
for  the  lot-owner.  AVlien  the  public  interest  conflicts 
with  the  private  interests,  the  council  ought  to  be  or 
may  be  agent  for  either,  but  ought  not  to  be  agent  for 
both.  The  council  cannot  serve  God  and  mammon.  Je- 
sus Christ  has  told  us  that  no  man  can  sen-e  two  mas- 
ters. He  will  love  one  and  hate  the  other.  The  city 
contractor  will  get  all  the  love  and  the  property-owner 
will  get  the  hatred. 

The  property-owner  may  insist  on  determining  his 
own  necessities  in  reference  to  his  own  right  of  way, 
but  these  public  agents  decide  these  conflicting  claims, 
not  as  a  judge  of  a  court  impartially  and  according  to 
law  and  e\^dence,  but  as  a  legislative  body.  These 
agents  cannot  serve  two  principals  having  conflicting 
interests.  It  cannot  be  done.  The  judgment  of  Jesus 
Christ  on  this  matter  was  excellent  and  commends  it- 
self to  the  good  sense  of  all.  To  this  writer  it  is  a  source 
of  sincere  regret  that  the  courts  should  reverse  the 
judgment  of  Jesus  Christ.      We  sincerely  regret  that 


266  Law  of  Local  Taxation.  [Chap.  11 

His  decision  has  been  oven-uled  and  that  the  common 
councils  of  our  cities,  towns  and  villages  are  still  com- 
pelled to  try  to  ride  two  horses  at  the  same  time,  going: 
in  opposite  directions. 

In  Neivhy  v.  Platte  County,  25  Mo.  258,  at  261, 
Judge  Leonard,  rendering  the  opinion  of  the  court  on 
this  tax  power,  says : 

''No  principle  of  English  jurisprudence  is  better 
settled  than  that  an  indi\adual  cannot  be  deprived  of 
his  property  except  for  the  public  use  and  for  a  just 
compensation,  and  the  British  parliament  accordingly 
never  authorized  one  individual's  property  to  be  taken 
for  the  private  benefit  of  another  upon  any  terms,  nor 
for  the  public  use,  without  first  providing  a  just  equiv- 
alent for  the  owner."  [1  Black  Com.  139.]  The  em- 
phatic declaration  of  the  French  law  (Civil  Code,  545) 
is,  that  "No  one  can  be  compelled  to  give  up  his  prop- 
ert}'  [Evidently  no  local  taxes  there]  except  for 
the  public  use  and  for  a  just  and  previous  indem- 
nit}^ ' '  And  an  anecdote  by  DeTott  in  his  Memoirs  of 
the  Turkish  Government  shows  that  the  same  principle 
is  equally  respected  in  that  despotic  government. 

The  Sultan  Mustapha,  being  desirous  of  building 
and  endowing  a  new  mosque,  fixed  upon  a  spot  in  the 
city  of  Constantinople  which  belonged  to  a  number  of 
individuals,  and  treated  with  them  for  the  purchase  of 
their  parts.  They  all  complied  with  his  wishes  except  a 
Jew  who  owned  a  small  house  on  the  place  and  who  re- 
fused to  part  with  it  for  any  price.  The  Sultan  con- 
sulted his  Mufti,  and  they  answered  that  private  prop- 
erty was  sacred,  and  that  the  laws  of  the  Prophet  for- 
bade his  taking  it  absolutely,  but  that  he  might  compel 
the  Jew  to  lease  it  to  him  as  long  as  he  pleased  at  a  full 
rent.     The  Sultan  submitted  to  the  law. 


Chap.  11]  Further  Changes.  267 

"But  in  Europe,  this  principle  is  in  referencMi  to 
the  ax3tion  of  the  government,  a  mere  moral  rule,  impos- 
mg  no  legal  restrictions  upon  the  legislative  authority, 
while  the  American  people,  by  incoi-porating  it  into 
their  Constitution  and  making  it  a  rule  of  constitu- 
tional law  of  superior  obligation  to  the  enactments  of 
the  legislative  department,  have  placed  private  prop- 
erty under  judicial  protection,  against  all  efforts  on 
the  part  of  the  government  to  take  it  from  the  owner, 
except  under  the  circumstances  and  upon  the  terms  rec- 
ognized as  just  and  proper  by  the  general  sense  of  man- 
kind and  the  uniform  practice  of  civilized  nations;  and 
they  have  thus  given  to  private  property  a  security  al- 
together unknowm  to  the  legal  systems  of  Europe.  Our 
constitutional  provision,  it  is  true,  does  not,  like  the 
declaration  of  the  French  law,  prohibit  in  express 
terms  the  taking  of  private  property  in  any  case  except 
for  the  use  of  the  public,  so  as  directly  to  deny  to  the 
Legislature  the  power  of  transferring  property  from 
one  person  to  another  for  any  mere  private  pur^oose, 
yet  all  this  is  sufficiently  implied;  and  accordingly  in 
the  construction  of  the  provision  it  is  always  assumed 
that  there  must  be  not  merely  a  just  compensation,  but 
that  the  use  to  which  the  property  taken  is  to  be  applied 
must  be  a  public  use  in  order  to  authorize  the  exercise 
of  the  power. ' ' 

The  rule  of  constitutional  law  has  certainly  been 
changed  since  July,  1857,  when  this  opinion  was  deliv- 
ered. AVe  have  discarded  the  rule  there  laid  down  and 
adopted  the  rule  of  European  constitutional  law.  The 
rule  is  one  of  morals  for  the  guidance  of  the  legislative 
power  vested  in  our  city,  town  and  village  councils.  The 
reader  may  have  noticed  nnmicipal  governments  in  the 
United  States  for  thirty  or  forty  years  past.  These  lo- 
cal governments  are  supposed  to  be  corrupt.     Munici- 


268  Law  of  Local.  Taxation.  [Chap.  11 

pal  charters  are  tlie  occasion  of  these  rotten  govern- 
ments and  they  have  occasioned  more  injury  than  all 
the  Empsous  and  Dudleys  of  English  history. 

Projjerty-owners,  think  of  it !  You  hold  your  city 
property  under  and  by  the  moral  sense  of  our  city  leg- 
islature. These  city  legislatures  are  not  governed  by 
the  Constitution.  Think  of  the  slender  thread  (a  rotten 
one  at  that)  by  which  you  hold  your  property.  Your 
right  to  hold  city  real  estate  is  reduced  to  this  exceed- 
ingly attenuated  shadow.  For  several  centuries  it  has 
been  a  favorite  theory  of  publicists  and  writers  on  in- 
ternational law  that  if  all  the  thieves  were  put  on  an  is- 
land, fertile  in  all  resources  for  human  needs,  sur- 
rounded with  ships  of  war  to  prevent  any  possible  es- 
cape, and  if  they  were  supplied  with  all  implements  of 
industry,  they  would  soon  make  and  enforce  laws 
against  stealing  and  in  favor  of  honesty.  We  ought  all 
of  us  to  congratulate  ourselves  on  our  near  approach 
to  the  long-expected— the  long-looked- for  millennium. 

In  all  the  states  the  constitutional  provision  is  that 
private  property  shall  not  be  taken  or  damaged  for 
public  use  without  just  compensation  paid  in  advance 
to  the  owner  or  into  court  for  the  owner.  These  ques- 
tions arise:  Who  is  owner?  Wliat  is  compensation? 
What  compensation  is  just?  What  is  a  taking?  What 
is  a  damaging?  Can  the  common  council  of  any  city 
detennine  who  is  owner  of  certain  land  within  the  cor- 
porate limits  so  as  to  bind  all  claimants  and  prevent 
any  other  incjuir}^  on  that  question,  in  the  courts?  Can 
the  comlmon  council  determine  that  the  compensation 
is  just  or  that  there  is  just  compensiation,  or  that  the 
land  is  not  taken  or  that  the  land  is  not  damaged, 
whether  there  is  a  damage  or  not,  is  that  a  question  for 
the  common  council  or  the  court?  What  is  the  meaning 
of  the  Constitution  on  this  point?  If  the  common  coun- 
cil can  determine  that  the  thing  done  or  proposed  is  a 


Chap.  11]  Further  Changes.  269 

benefit,  then  it  cannot  be  a  damage.     Property  cannot 
be  damaged  by  a  benefit  or  l>eiiefited  by  a  damage. 

In  Barber  Asphalt  Paving  Company  v.  French, 
158  Mo.  534,  the  invalidity  of  the  special  charter  of 
Kansas  City  was  especially  pleaded;  the  answer  set  up 
that  the  charter  pretended  to  authorize,  and  in  form 
authorized,  the  improvement  of  a  street  and  an  assess- 
ment of  the  cost  thereof  (not  benefit)  on  the  adjoining 
property  according  to  frontage,  whether  benefited  or 
not ;  and  in  cases  where  the  property  was  in  fact  dam- 
aged, and  that  to  the  extent  of  the  excess  of  the  cost  of 
the  work  over  and  above  the  special  benefits  to  the  ad- 
joining ]iroperty  the  assessment  constituted  a  taking  of 
private  proi^erty  for  public  use  without  just  compensa- 
tion ;  and  that  such  taldng  of  private  property  for  pub- 
lic use  without  just  compensation  constituted  a  case 
wherein  the  State  of  Missouri,  through  the  Kansas 
City  Charter,  deprived  the  citizen  of  his  property  with- 
out due  process  of  law.  The  plaintiff  offered  evidence 
that  these  lots  were  benefited  to  the  extent  of  the  cost 
of  the  work;  this  evidence  was  objected  to  as  incompe- 
tent; the  objections  were  overruled  and  this  was  as- 
signed for  error  in  the  court  above  (Supreme  Court  of 
Missouri). 

In  passing  on  this  question  the  Supreme  Court  of 
Missouri  say  (158  Mo.  534,  at  556) : 

''As  the  assessment  was  made  in  strict  compliance 
with  the  charter  and  ordinance,  we  do  not  think  the  tes- 
timony of  the  four  witnesses  to  the  effect  that  the  ben- 
efits to  the  lots  exceeded  the  cost  of  the  improvement 
could  cure  the  vice,  if  any,  in  the  charter  and  the  ordi- 
nance. Plaintiff  must  stand  or  fall  by  the  charter  i>ro- 
vision.  The  admission  of  the  evidence,  however,  did 
not  constitute  reversible  error,  as  we  hold  the  charter 
and  the  ordinance  were  sufficient  without  the  evidence 
and  would  have  been  had  it  been  to  the  contranj." 


270  Law  of  Local  Taxation.  [Chap.  11 

Again  page  553  say  the  court : 

"At  that  time  [Davidson  v.  Netv  Orleans,  96  U. 
S.  97  (A.  D.  1896)]  it  is  clear  that  the  whole  court  held 
that  the  fact  that  an  assessment  was  for  an  iinprove- 
ment,  which  in  fact  was  no  benetit  to  the  property  own- 
er, did  not  bring  the  case  within  the  fourteenth  amend- 
ment and  it  would  be  hard  to  conceive  of  a  harder 
case. ' ' 

Speaking  of  the  act  of  Congress  involved  in  Par- 
sons V.  District  of  Columbia  and  the  Kansas  City 
Charter,  the  Missouri  Supreme  Court,  at  page  551,  say: 

"In  neither  case  is  there  any  inquiry  as  to  benefits, 
nor  is  the  tax  levied  according  to  actual  benefit,  but 
both  alike  rest  upon  the  conclusive  presumption  in- 
dulged by  Congress  in  the  one  case  and  the  charter  in 
the  other,  that  such  an  improvement  is  a  benefit  to  the 
abutting  property." 

''Not  only  is  this  true,  but  the  Supreme  Court  of 
the  United  States  is  solemnly  committed  to  the  doctrine 
that  if  the  assessment  actually  exceeds  the  cost  of  the 
work,  it  would  not  vitiate  or  annul  the  assessment.' ' 

Again  on  page  548 : 

"But  in  taxing  the  citizen  with  his  proportionate 
share  of  the  cost  of  a  pavement  abutting  on  his  lot, 
there  is  no  taking  of  property  for  public  use."  This  of 
course  means  according  to  the  frontage  of  the  property 
or  the  area.  The  proportion  is  obtained  in  several 
ways.  First,  it  may  be  in  proportion  to  the  value  of  the 
property  taxed ;  second,  it  may  be  in  proportion  to  its 
frontage ;  third,  it  may  be  in  proportion  to  area ; 
fourth,  it  may  be  in  proportion  to  the  benefit  ("It  ought 
to  be  according  to  the  value  of  the  benefit  to  be  de- 
rived," was  the  language  of  the  court  in  1858,  in  Egyp- 
tian Levee  Company  v.  Hardin,  27  Mo.  495,  at  496,  near 
the  bottom  of  the  page). 

If  we  adopt  the  rule  above  enunciated,  "according 


Chap.  11]  Further  Changes.  271 

to  the  value  of  the  benefit  to  )xi  derived,"  then  by  the 
constniction  jmt  on  the  language  of  the  law  the  bene- 
fit must  be  special,  peculiar,  exceptive,  and  a  general 
benefit  will  not  support  the  tax.  Such  tax  will  be  tak- 
ing private  property  for  ])ublic  use  without  just  com- 
pensation. If  there  be  no  special,  i)eculiar,  exceptive, 
benefit  there  can  be  no  tax  in  case  the  tax  is  according 
to  benefit.  Such  tax-law  would  be  unconstitutional  in 
that  it  would  take  private  property  for  public  use  with- 
out just  compensation.  Let  us  levy  a  special  tax  to 
grade  a  street.  Here  the  work  may  be,  first,  general 
benefit;  second,  a  special,  peculiar,  exceptive,  benefit; 
third,  it  may  be  no  benefit,  special  or  general ;  fourth, 
it  may  be  a  damage.  When  the  statute  taxes  the  owner 
of  abutting  property  or  any  other  property,  or  the 
abutting  property  or  any  other  property  in  any  one  of 
the  four  cases  named  except  the  second,  and  when  a 
sale  and  deed  are  made  conveying  the  title,  then  the 
owner  has  certainly  lost  his  land — and  what  did  he  get 
for  it?  But  here  the  decision  is,  "There  is  no  taking 
of  property  for  public  use. ' ' 

If  the  work  be  only  a  general  benefit,  or  if  it  be  no 
general  benefit  or  special  benefit,  or  if  it  be  a  damage, 
what  possible  difference  does  it  or  can  it  make  whether 
the  tax  be  according  to  value  or  according  to  frontage 
or  according  to  area!  Here  is  real  estate  worth  $1,025. 
Here  is  a  tax  against  it  of  $1,488.16,  with  interest  added 
$1,642.55 ;  what  difference  did  it  make  to  Ur.  Kellogg 
{Zoeller  v.  Kellogg,  4  Mo.  App.  163)  whether  this  tax 
be  levied  on  his  land  according  to  frontage  or  accord- 
ing to  value  or  according  to  area;  by  the  square  foot 
or  by  the  square  yard. 

Wlien  they  paved  the  street  in  front  of  Mr.  Kel- 
logg's  property,  worth  with  the  improvement  $1,025; 
when  they  entered  a  judgment  against  it  for  $1688,  sold 
it  and  made  a  deed  for  it  conveving  away  Mr.  Kel- 


272  Law  of  Local  Taxation.  [Chap.  11 

logg's  title,  they  would  not  have  taken  private  property 
for  public  use  according  to  this  rule  of  constitutional 
law.  (Of  course  Kellogg 's  land  was  not  sold  in  that 
case;  tlie  judgment  was  that  it  could  not  be  sold,  but 
this  case  has  been  overruled  and  the  land  would  have 
been  sold  under  the  present  course  of  decision.) 

In  the  case  under  consideration,  158  Mo.  at  542, 
the  court  say: 

**In  the  condemnation  proceeding  proper  [referr- 
ing to  Norwood  v.  Baker,  172  U.  S.  269],  the  jurj^  as- 
sessed her  compensation  at  two  thousand  dollars  and 
that  sum  was  paid  her,  and  thereupon  the  \allage  coun- 
cil assessed  her  with  the  two  thousand  dollars  and  all 
the  costs  of  the  condemnation,  amounting  to  $218.58  as 
benefits  to  her  abutting  property.  The  result  was  that 
the  village  acquired  her  property  for  nothing  and 
charged  her  $218.58  for  having  deprived  her  of  it." 

How  could  that  be  if  both  sums  were  benefits?  If 
the  two  thousand  dollars  and  the  two  hundred  and  eigh- 
ten  dollars  and  fifty-eight  cents  were  benefits,  why 
could  they  not  be  charged  against  the  land?  [Kansas 
City  damaged  Mrs.  Smith's  land  to  the  extent  of 
$2,750,  and  made  her  pay  three  hundred  dollars  for  do- 
ing the  damage  (128  Mo.  p.  23;  67  Mo.  App.  205).] 

The  above  language  of  our  Missouri  Supreme 
Court  is  inaccurate  and  tends  to  mislead.  Mrs.  Baker 
is  charged  to  have  been  assessed  ''with  $2,000,  and  all 
the  costs  of  the  condemnation  amounting  to  $218.58  as 
benefits  to  her  abutting  property.''  What  possible  ob- 
jection could  be  urged  to  such  proceeding  if  Mrs.  Bak- 
er 's  property  was  benefited  to  that  extent  or  to  a  great- 
er extent,  if  such  benefits  were  special,  i^eculiar,  excep- 
tive? 

The  city  council  of  Norwood  had  power  to  assess 
this  tax  in  several  ways:  First,  as  a  general  tax  on 
all  the  property  of  the  village;  second,  they  might  as- 


Chap.  11]  Further  Changes.  273 

sess  it  on  the  adjoining  property  according  to  the  value 
of  the  property;  third,  they  might  assess  it  on  tlie  ad- 
joining land  according  to  the  benefit  conferred  on  the 
adjoining  land  by  the  improvement  (and  here  the  ben- 
efit must  be  si>ecial,  peculiar  and  exceptive) ;  fourth, 
they  might  assess  it  on  the  abutting  property  "by  the 
front  foot  of  the  property  bounding  and  abutting  upon 
the  improvement"  (Nonrood  v.  Baker,  172  U.  S.  269, 
at  273).  This  $2,218,58,  it  is  said,  was  ordered  to  "l)e 
assessed  as  a  benefit  to  her  upon  her  land  abutting  uix)n 
the  land  so  taken"  (158  Mo.  542).  The  tax  was  held 
invalid  and  a  sale  of  the  land  (supposed  to  be  bene- 
fited) was  enjoined  because  the  land  was  not  assessed 
according  to  benefit.  "The  result  was  that  the  village 
acquired  her  land  for  nothing  and  charged  her  $218.58 
for  having  deprived  her  of  it." 

The  writer  is  unable  to  understand  how  it  can  fair- 
ly be  said  "that  the  \illage  acquired  her  property  for 
nothing,"  when  the  village  paid  her  $2,000  for  it,  the 
full  assessed  value  thereof,  the  verdict  being  acquiesced 
in  both  by  the  village  of  Norwood  and  by  Mrs.  Baker. 
Mrs.  Baker  did  not  sue  for  the  value  of  her  land  taken 
for  public  use,  and  fixed  in  amount  by  the  court  and 
jury  under  the  laws  of  Ohio.  If  she  had  sued  for  the 
money,  the  \411age  of  Xoi'wood  would  have  successfully 
pleaded  and  proved  payment.  The  village  "charged 
her  $218.58  for  having  deprived  her  of  it"  (her  land). 

What  land  did  they  deprive  her  of?  Wliat  land  did 
the  village  of  Norwood  acquire  for  nothing?  Certainly 
not  the  land  embraced  in  the  street  and  condemned, 
for  tliat  was  paid  for  in  full.  The  strip  condemned  and 
paid  for  was  50  by  300  feet,  Mrs.  Baker  owning  the  land 
on  each  side  of  the  street.  Suppose  that  Mrs.  Ellen  Jones 
had  owned  this  strip  of  land  50  by  300  feet,  and  it  had 
been  condemned  and  "just  compensation"  assessed  at 
$2,000,  and  paid  to  ^Irs.  Jones ;  could  it  have  been  fair- 

18 


274  Law  of  Local  Taxation.  [Chap.  11 

ly  said  that  the  village  acquired  Mrs.  Jones'  land  for 
nothing  and  charged  her  $218.58  for  having  deprived 
her  of  it  ?  Mrs.  Baker's  land  was  taken  for  public  use 
at  a  price  (paid)  satisfactory  to  her  and  the  village  of 
Norwood.  The  50  by  300  feet  strip  of  land  belonging 
to  Mrs.  Baker  was  taken  for  public  use  but  not  without 
' '  just  compensation. ' ' 

It  was  undoubtedly  taken  for  public  use  but  ' '  just 
compensation"  was  paid  to  her  for  it.  No  wrong  was 
done  or  attempted  to  be  done  under  the  power  of  ''em- 
inent domain"  so  far  as  this  strip  of  land  (50  by  300 
feet),  belonging  before  the  condemnation  to  Mrs.  Bak- 
er, was  concerned.  The  private  property  of  Mrs.  Bak- 
er, other  than  this  50  by  300  foot  strip,  was  about  to 
be  taken  for  public  use  without  just  compensation.  This 
land,  so  threatened  to  be  taken  for  public  use  without 
just  compensation,  was  not  the  50  by  300  foot  strip  of 
land  condemned  and  paid  for  for  the  avenue  opened, 
but  it  was  the  adjoining  or  abutting  property  belonging 
to  Mrs.  Baker,  the  sale  of  which  for  this  local  tax  was 
enjoined.  Mrs.  Baker  enjoined  the  sale  of  her  land. 
The  injunction  was  made  perpetual.  Suppose  the  in- 
junction had  been  dissolved  and  her  land  had  been  sold 
for  $2,218  and  costs  of  sale,  then  she  would  have  lost 
the  land  in  the  street  or  the  $2,000  she  received  for  it, 
and  would  have  had  not  a  cent  left  and  no  land.  She 
lost  her  adjoining  land  under  the  tax-power  and  this 
included  $2,000  condemnation  money  for  the  land  taken 
for  the  street. 

"A  public  improvement  having  been  made,  it  is 
beyond  question  a  legislative  function  (and  a  common 
council  duly  authorized  as  in  this  case  has  legislative 
powers)  to  determine  the  area  benefited  by  such  im- 
provements and  the  legislative  determination  is  con- 
clusive."  [Dissenting  opinion  in  Norwood  v.  Baker, 
172  U.  S.  at  "4th"  p.  297.]    "The  legislative  act  charg- 


Chaj).  11]  FuRTiiEit  Changes.  275 

ing  the  entire  cost  of  an  improvement  upon  certain  de- 
scribed i)roperty  is  a  legislative  determination  tlrnt  the 
property  described  constitutes  the  area  benefited,  and 
also  that  if  is  benefited  to  the  extent  of  such  cost." 
fSame  oi>inion,  p.  299.]  Again,  page  300:  ''Here  the 
plaintiff  does  not  allege  that  her  property  was  not  ben- 
efited by  the  improvement  and  to  the  amount  of  the  full 
cost  thereof."  Why  allege  that  her  property  was  not 
benefited  when  the  legislative  act  concludes  her  on  that 
subject?  If  there  had  been  incontestible  evidence  that 
Mrs.  Baker's  land  had  been  benefited  to  the  extent 
(say)  of  five  thousand  dollars,  no  one  can  see  any  rea- 
son against  a  tax  on  her  adjoining  land  of  $2,000  for 
land  taken  and  $218  costs. 

'*It  seems  indisputable  that  if  no  inquin^  into  ben- 
efits was  required  in  the  Parsons  case  (170  U.  S.  54), 
and  that  act  was  constitutional,  neither  can  the  char- 
ter and  ordinance  of  Kansas  City  which  also  provide 
a  comprehensive  system  of  improvements  be  held  un- 
constitutional. In  neither  case  is  there  any  inquiry  as 
to  benefits  nor  is  the  tax  levied  according  to  actual  ben- 
efit, but  both  aliJie  rest  upon  the  conclusive  presump- 
tion indulged  by  Congress  in  the  one  case  and  the  char- 
ter in  the  other,  that  such  an  improvement  is  a  benefit 
to  the  abutting  property."  {Barber  Asphalt  Paving 
Co.  V.  French,  158  Mo.  534,  at  551.] 

''It  is  true  that  in  many  jurisdictions,  certainly  in 
this  State  it  is  true,  that  municipal  acts,  whether  in  the 
form  of  ordinances  or  resolutions,  may  be  impeached 
for  fraud  at  the  instance  of  persons  injured  thereby." 
[lb.,  p.  547.] 

If  there  is  a  conclusive  presumption  that  the  prop- 
erty-owner has  been  benefited,  how  can  he  prove  he  has 
been  injured?  How  can  the  legislative  act  be  im- 
peached?   A  fraud  which  is  a  benefit  to  the  party  de- 


276  Law  of  Local  Taxation.  [Chap.  11 

frauded  is  something  rather  new  in  modern  law  and  is 
peculiar  (so  far)  to  tax-bills. 

"But  aside  from  this,  the  question  of  whether  the 
plaintiff's  lots  would  or  would  not  be  benefited  by  the 
construction  of  tliis  sewer,  is  a  legislative  and  not  a  ju- 
dicial question,  and  the  municii)al  legislature  adjudged 
that  they  would  be  benefited,  and  fixed  the  ratio  of  such 
benefit  when  it  established  the  joint  sewer  district,  and 
as  there  is  no  question  of  fraud  or  oppression  of  the 
municipal  assembly  in  so  passing  such  ordinance  (even 
if  such  allegation  would  convert  the  question  into  a  ju- 
dicial one,  as  to  which  it  is  not  now  necessary  to  decide) 
su-ch  judgment  of  the  assembly  is  conclusive."  [Prior 
V.  Construction  Co.,  170  Mo.  439,  at  451,  bottom.] 

This  theory  of  a  conclusive  presumption  of  l^ene- 
fit  is  contrary  to  the  previous  holding  of  the  courts. 
The  courts  had  held  (A.  D.  1884)  that  a  defendant  in  a 
suit  on  a  tax-bill  may  ''entirely  defeat  a  recovery  by 
overthrowing  the  theory  of  benefits  conferred"  [City 
to  use  V.  Ridenour,  84  Mo.  253,  loc.  cit.  261].  How  can 
this  be  done  if  there  is  a  legislative,  conclusive  pre- 
sumption of  benefits  ?  Shortly  afterwards  the  court  be- 
low "refused  to  allow  defendant's  offer  of  testimonj^  to 
show  that  the  lot  was  not  benefited  by  the  improvement, 
but  that  its  value  was  entirely  destroyed  thereby.  [Mo- 
berly  v.  Hog  an,  131  Mo.  19,  loc.  cit.  22  bottom,  and  top 
23.]  The  inconsistencies  involved  in  constitutional  law 
on  this  subject  are  treated  further  in  the  next  chapter. 


CHAPTER  12. 

RESULTS  — INCONSISTENCIES. 

Tn  the  Constitution  of  Missouri,  the  clause  as  to 
damaging  private  property  for  public  use  was  first  in- 
troduced in  1875.  Prior  to  that  time  the  State,  or  any 
corporation  under  its  authority,  might  im]:»rove  a  pub- 
lic highway  by  lowering  or  elevating  the  grade  or  by 
outs  and  fills  so  as  to  destroy  all  access  to  abutting 
property.  Such  cases  were  called  "damnum  absque 
injuria/'  A  notable  instance  occurs  in  St.  Louis  v. 
Peter  Gurno,  12  Mo.  4U,  et  se(i.  (A.  D.  1849).  The  suit 
was  for  damages  occasioned  in  1843  to  Mr.  Gurno 's 
property  by  ''grading  and  paving"  certain  streets  ad- 
joining this  property.  After  reciting  the  e\ddence,  the 
reporter  says,  p.  416:  ''And  thereupon  the  juiy  found 
tlie  defendant  guilty,  and  assessed  the  damages  at 
$1,675."  As  a  matter  of  fact,  Mr.  Gurno 's  property 
was  damaged  to  that  extent,  but  the  court  reversed 
the  judgment,  holding  that  even  if  the  city  of  St.  Louis 
did  injure  Mr.  Gurno  to  that  amount,  still  he  could  re- 
cover nothing.  The  city  had  a  right  to  ruin  his  prop- 
erty without  being  liable  for  anything. 

Taylor  et  al.  v.  St.  Louis,  14  Mo.  20,  was  a  suit  of 
like  character  decided  in  1851.  The  amount  of  damage 
is  not  stated  as  the  court  below  must  have  followed  St. 
Louis  V.  Peter  Gurno,  supra  ;  the  first  lines  of  the  opin- 
ion so  state.  Say  the  court  in  Taylor  v.  St.  Louis,  14 
Mo.  20,  at  24 : 

"To  grade  a  street  or  alley  already  dedicated  to 
public  use  is  not  an  exercise  of  the  eminent  domain,  so 
as  to  require  compensation.  [Ts  it  now?]  Tt  is  not  ap- 
propriating private  property  to  public  use,  but  sim- 

(277) 


278  Law  of  Local  Taxation.  [Chap.  12 

ply  an  exercise  of  power  over  what  is  already  public 
property. ' ' 

"To  grade  a  street"  is  certainly  not  an  exercise 
of  eminent  domain;  it  is  certainly  not  an  exercise  of 
the  tax  power.  The  language  of  the  court  may  be  sus- 
ceptible of  two  meanings.  We  apprehend  the  meaning 
is  that  "to  grade  a  street  or  alley  already  dedicated 
to  public  use  is  not  an  exercise  of  the  eminent  domain 
and  does  not  require  compensation."  The  writer  is  not 
aware  of  any  case  where  the  eminent  domain  can  be  ex- 
ercised without  compensation.  St.  Louis,  under  an  act 
of  the  Legislature  giving  (in  form  at  least)  the  author- 
ity, established  a  building  line  on  one  of  her  boule- 
vards. The  ordinance  pro\dded  that  no  building  should 
be  erected  on  any  adjoining  lot  within  forty  feet  of  the 
street  line,  and  that  if  any  one  violated  the  ordinance 
he  should  be  fined  and  the  building  torn  down.  One 
of  her  citizens  owning  a  lot  built  within  fifteen  feet  of 
the  street;  he  was  arrested  and  fined  in  police  court, 
and  fined  in  the  criminal  court  on  appeal  to  that  court, 
but  the  judgment  was  reversed  in  the  Supreme  Court. 
[St.  Louis  V.  Hill,  116  Mo.  527.] 

If  the  council  may  prevent  his  building  on  the 
front  forty  feet,  they  may  prevent  his  building  on  the 
back  forty  feet,  or  the  middle  forty  feet.  They  may 
prevent  his  building  on  the  whole  lot  or  any  part  of  it. 
The  council  may  compel  him  to  "cut  the  weeds"  on 
his  lot  and  enjoin  him  to  "keep  off  the  grass,"  and  fine 
him  $300  per  day  if  he  fails  to  "keep  off  the  grass." 
The  right  to  build  on  this  forty  feet  is  property.  That 
property  under  the  act  of  the  Legislature  and  the  city 
ordinance  was  taken,  and  yet  there  was  no  exercise  of 
the  eminent  domain.  There  was  no  condemnation  pro- 
ceeding. In  the  Gurno  case  the  court  say  that  the  act 
complained  of  is  merely  an  exercise  of  power  over  what 
is  already  public  property.  But  the  modern   law  goes 


Chap.  12]        Results — Inconsistencies.  279 

further.  Air.  Gurno's  property  was  dauiaiJfed  by  pav- 
ing and  grading  to  the  extent  of  $1,G75.  St.  Louis  paved 
and  graded  this  street  at  some  cost  which  she  can  pay 
only  by  a  tax,  special  or  general.  If  Afr.  Gurno's  lots 
had  been  sold  to  pay  for  this  grading  and  paving,  and 
his  title  passed  to  others,  he  has  certainly  lost  his  prop- 
erty by  the  deed  to  the  purchaser  and  the  city  got  the 
money  which  it  used,  to  pay  the  cost  of  this  grading 
and  paving.  In  theory,  his  property  has  not  been  taken 
(only  damaged)  for  pu])lic  use.  This  is  a  refinement 
of  the  law  which  is  a  practic<al  robbery  of  the  owner. 
On  this  modem  doctrine  of  a  conclusive  presumption 
of  benefit,  both  as  to  the  fact  and  amount,  I  wish  to 
call  attention  to  two  cases  (referred  to  heretofore)  re- 
ported in  Missouri  Reports :  Smith  v.  Kansas  City,  128 
Mo.  23,  and  McQmddy  v.  Smith,  67  Mo.  App.  205,  et 
seq.,  the  first  decided  in  1894  and  the  second  in  1896. 
The  facts  in  brief  were  these. 

On  March  2,  1889,  Kansas  City  by  ordinance  of 
that  date  established  the  grade  of  Locust  street  in  Kan- 
sas City  in  front  of  Mrs.  Smith's  house  at  about  four- 
teen feet  below  the  natural  surface,  and  on  January' 
3,  1890,  the  city  by  ordinance  provided  for  cutting 
down  the  street  in  front  of  plaintiff's  property  to  the 
grade  so  established.  The  city  through  its  contractor 
in  September  and  October,  1890,  gi-aded  the  street  to 
the  grade  so  established.  Mrs.  Smith  (in  Smith  r.  Kan- 
sas City,  128  AIo.  23)  claimed  that  her  property  was 
by  such  grading  damaged  to  the  extent  of  five  thousand 
dollars,  for  which  amount  she  brought  suit  against  the 
city.  She  secured  judgment  against  the  city  for  $2,750 
and  the  city  brought  the  case  to  the  Supreme  Court  on 
appeal.  The  plaintiff  gave  evidence  tending  to  show 
that  her  property  was  damaged.  Says  the  report: 
''The  defendant  introduced  e\'idence  tending  to  prove 
that  the  effect  of  the  grading  was  not  to  depreciate  but 


280  Law  of  hocAL.  Taxation.  [Chap.  12 

to  increase  the  market  value  of  the  property" 
(128  Mo.  28).  The  jury  rendered  a  verdict  for 
the  plaintiff  for  $2,750  and  the  Supreme  Court  affirmed 
the  judgment. 

When  the  work  was  completed  under  contract  and 
ordinance,  tax-bills  were  issued  but  these  tax-bills  were 
held  void  in  McQuiddy  v.  Vineyard,  60  Mo.  App.  610, 
because  the  proper  officer  did  not  sign  them.  The  tax- 
bills  were  reissued  and  one  of  them  formed  tlie  basis 
of  the  suit  in  McQuiddy  v.  Smith,  in  67  Mo.  App.  205, 
et  seq.  The  contractor  sued  on  the  tax-bills  reissued 
for  grading  the  street,  which  grading  caused  the  dam- 
ages of  $2,750,  decided  in  Smith  v.  Kansas  City,  in  128 
Mo.  23.  In  the  circuit  court,  judgment  was  rendered 
for  the  contractor  for  the  amount  of  the  tax-bill,  with 
interest  and  costs,  and  this  case  was  taken  by  appeal 
to  the  Kansas  City  Court  of  Appeals  where  the  judg- 
ment was  affirmed.  The  decision  is  put  on  the  ground 
that  the  fact  that  the  grading  damaged  and  did  not 
benefit  the  lotowner  was  no  defense.  The  tax-bill 
amounted  to  three  hundred  dollars,  as  I  am  informed 
by  counsel.  The  decision  construes  article  8  of  the 
Kansas  City  Charter  of  1889.  The  result  of  the  two 
cases  was  that  the  street  in  front  of  Mrs.  Smith's  lot 
was  graded  to  her  damage  in  the  sum  of  $2,750,  and 
she  had  to  pay  three  hundred  dollars  for  having  her 
property  damaged  to  that  amount.  Compare  these  two 
cases  (especially  McQuiddy  v.  Smith,  65  Mo.  App.  205) 
with  Walther  v.  Warner,  25  Mo.  277,  and  Powers  v. 
Hurmert,  51  Mo.  136.  They  are  the  antipodes  of  each 
other.  In  the  one  case  the  trespasser  is  answerable 
to  the  landowner  for  the  damage  done.  In  the  other 
case  the  landowner  must  pay  damages  to  the  tres- 
passer. 

Under  the  old  law  the  trespasser  pays  damages; 
under  the  new  law  he  receives  damages.     Under  the 


Chap.  12]        Results — Inconsistencies.  281 

old  law  the  landowner  received  damages;  under  the 
new  law,  he  i)ays  damages. 

Say  the  Supreme  Court  in  25  Mo.  277,  at  283 : 
''The  facts  may  be  stated  in  a  few  words:  tlie  suit 
is  for  alleged  trespasses  committed  by  the  defendants 
in  constructing  the  Pacific  railroad  upon  the  i^laintiff 's 
ground  before  the  company  had  commenced  proceed- 
ing's against  the  plaintiff  to  acquire  title  to  it,  although 
afterwards  and  before  the  present  suit  was  commenced 
they  did  institute  such  proceedings,  and  so  conducted 
them  that  during  the  progress  of  this  suit  a  judgment 
was  rendered  against  the  company  for  the  assessed 
damages,  and  an  order  was  made  vesting  the  title  to  the 
land  in  the  company.    In  the  course  of  the  present  suit 
the  defendants  amended  their  answer,  alleging  the  in- 
stitution of  these  proceedings  to  acquire  title,  and  that 
they  were  yet  pending  and  being  prosecuted  by  the  com- 
pany with  reasonable  diligence  to  a  termination.    The 
court  refused  to  strike  out  this  amended  answer,  ad- 
mitted these  proceedings  in  evidence  on  the  trial,  and 
directed  the  jury  substantially  that  if  the  company  had 
located  their  road  on  the  plaintiff's  land,  and  the  tres- 
passes complained  of  were  necessarily  conmiitted  by 
the  company's  contractors  in  the  construction  of  the 
road,  the  plaintiff  could  not  recover  on  account  of  such 
acts.     It  is  thus  seen  that  the  practical  question  in  the 
case  is,  whether  the  legislative  acts,  to  which  we  have 
referred,  any  or  all  of  them  justify  the  alleged  tres- 
passes, and  we  are  of  the  opinion  that  they  do  not ;  and 
that  therefore,  the  judgment  must  be  reversed  and  the 
cause  remanded  and  in  this  we  all  concur."  Tlie  defend- 
ants, the  railroad  contractors  were  held  liable  for  the 
trespass  committed. 

In  Pollers  v.  Hurmert,  51  Mo.  136,  the  Quincy, 
Missouri  and  Pacific  Railroad  Company  constructed  a 
railroad  on  and  over  the  lands  of  the  plaintiff,  Rich- 


282  Law  of  Loc.u^  Taxation.  [Chap.  12 

ard  L.  Powers,  in  Adair  county,  Missouri.  The  defend- 
ant, the  contractor  for  grading  the  railroad,  in  the  pros- 
ecution of  his  work  under  his  contract,  tore  down 
plaintiff's  fence  on  the  railroad  right  of  way.  The 
right  of  way  was  part  of  the  cultivated  land  of  the 
plaintiff,  Mr.  Powers,  and  was  in  his  possession  and 
use.  The  railroad  company  had  filed  their  suit  to  con- 
demn this  land,  the  landowner  appeared  to  the  suit  and 
commissioners  to  assess  damages  had  been  appointed 
and  these  commissioners  had  assessed  Mr.  Powers 
damages  at  $200.  Their  report  had  been  filed  and  no 
exceptions  thereto  had  been  made.  Then  the  contrac- 
tor tore  down  the  fence.  A  few  days  after  the  con- 
tractor tore  down  the  fence,  the  money  was  paid  into 
court  by  the  railroad  company  for  Mr.  Powers,  the 
landowner,  and  Mr.  Powers  accepted  the  two  hundred 
dollars  giving  his  receipt  therefor  and  sued  the  rail- 
road contractor  in  trespass  for  tearing  down  his  fence. 
He  recovered  ten  dollars  before  a  justice  of  the  peace 
and  on  appeal  to  the  circuit  court  the  landowner  again 
had  judgment  and  the  contractor  took  the  case  by  ap- 
peal to  the  Supreme  Court,  where  the  judgment  was  af- 
firmed. This  case  was  decided  at  the  October  term, 
A.  D.  1872,  three  years  before  the  adoption  of  the  Con- 
stitution of  1875.  In  rendering  the  opinion,  the  court, 
at  page  137,  et  seq.,  say: 

''The  only  question  presented  is,  whether  the 
agreed  case  warrants  the  judgment.  It  is  contended 
that  the  reception  of  the  money  allowed  by  the  commis- 
sioners on  the  condemnation  of  the  property  was  a 
waiver  of  the  alleged  trespass.  It  is  agreed  that  the 
trespass  was  committed  and  the  liability  incurred  be- 
fore the  condemnation  was  perfected  by  the  paymient 
of  the  money.  It  may  be  remarked  that  the  taking  of 
private  property  for  public  use  is  in  the  nature  of  a 
forced  sale.     The  owner  is  compelled  to  part  with  his 


Chap.  12]        EEsuLTfr— Inconsistencies.  283 

property  at  the  ]n-ice  assessed.  The  whole  proceeding 
is  m  invitum  and  he  is  forced  to  take  the  assessed  price, 
nolens  volens.  So,  in  accepting  the  price  which  is 
forced  on  him,  he  agrees  to  nothing,  and  waives  no  ])re- 
vious  right  that  may  have  accrued  to  him,  nor  does  the 
condenmation  rehite  back  so  as  to  justify  a  previous 
trespass.  Relation  is  sometimes  allowed  to  prevent 
injustice,  as  when  an  attachment  has  been  issued  and 
levied  without  sufficient  affidavit,  and  an  amended  affi- 
da\nt  is  afterwards  made  it  will  relate  back,  so  as  to 
uphold  the  attachment  and  justify  the  previous  lev}', 
but  in  that  case  the  right  to  the  attachment  and  its  levy 
existed  at  the  time  and  only  lacked  the  formality  of  a 
sufficient  affidavit.  The  right  to  invade  the  plainti/f's 
property  Iwd  no  existence  till  the  condenmation  was 
complete  hy  payment  of  the  assessed  price.  [See  Wal- 
ther  V.  Warner,  25  Mo.  277.] " 

Judge  Adams  wrote  this  opinion,  concurred  in  by 
Judge  Wag-ner,  and  the  case  was  approved  in  Powers 
V.  Hurmert,  51  Mo.  152:  "Private  property  shall  not 
be  taken  or  applied  to  public  use  without  just  compen- 
sation," was  the  old  Constitution  of  Missouri.  The 
new  Constitution  changed  the  language  materially: 
"Private  property  cannot  be  either  taken  or  damaged 
for  public  use  without  just  compensation,"  and  the 
framers  of  the  Constitution  added  that  until  this  "just 
compensation"  (either  for  taking  or  damaging)  shall 
be  paid  to  the  owner,  his  ]iroprietary  nghts  shall  not 
be  divested  and  the  owner  shall  not  be  disturbed.  The 
owner's  title  cannot  be  divested  without  payment  in 
advance;  the  owner  cannot  be  disturbed  without  pay- 
ment in  advance.  The  owner  is  just  as  much  entitled 
to  **just  compensation"  in  advance  for  damaging  his 
private  property  for  public  use,  as  he  is  entitled  to 
"just  compensation"  in  advance  for  taking  his  private 
property  for  public  use. 


284  Law  of  Local  Taxation.  [Chap.  12 

Now,  "payment  of  the  assessed  price"  for  dam- 
aging is  just  as  necessary  as  ''payment  of  the  assessed 
price"  for  taking.  "The  right  to  invade  the  plaintiff's 
property  had  no  existence  till  the  money  was  paid;" 
the  right  to  disturb  the  owner  had  no  existence  till  the 
money  was  paid.  Both  rights  are  conferred  in  the  same 
sentence  in  the  Constitution.  The  constitutional  pro- 
vision is : 

"That  private  property  shall  not  be  taken  or  dam- 
aged for  public  use  without  just  compensation.  Such 
compensation  shall  be  ascertained  by  a  jury  or  board 
of  commissioners  of  not  less  than  three  freeholders, 
in  such  manner  as  may  be  prescribed  by  law;  and  un- 
til the  same  shall  be  paid  to  the  owner,  or  into  court  for 
the  owner,  the  property  shall  not  be  disturbed  or  the 
proprietary  rights  of  the  owner  therein  divested? 

Judicial  questions  may  arise  under  this  constitu- 
tional pro\asion  or  any  other  statute.  To  determine 
what  the  law  is,  is  of  the  very  essence  of  judicial  duty. 
To  determine  what  the  law  shall  be  is  of  the  very  es- 
sence of  legislative  duty.    These  questions  may  arise : 

1.  Wliat  is  private  property? 

2.  Who  owns  it? 

3.  What  is  taking  it? 

4.  What  is  damaging  it? 

5.  Is  a  given  taking  for  public  use? 

G.    Is  a  given  damage  for  public  use? 

7.    What  is  just  compensation? 

The  Constitution  evidently  contemplates  judicial 
action  in  each  of  the  seven  cases  noted,  and,  it  may  be, 
in  others.  The  writer  has  not  undertaken  to  name  all 
the  cases  in  which  judicial  action  must  be  taken.  If 
the  Legislature  has  the  power  to  determine  what  is 
"just  compensation"  and  does  so  determine,  then  there 
is  nothing  left  for  court  or  jury  or  commissioners  to 
do.    They  have  no  jurisdiction.    If  the  Legislature  has 


Chap.  12]        Results — Inconsistencies.  285 

the  power  to  determiiie  and  does  deteniiine  that  cer- 
tain acts  are  not  a  taking  of  private  property  for  pub- 
lic use,  then  there  is  nothing  left  for  the  courts  to  do. 
If  the  Legislature  has  the  power  to  determine  and  does 
detennine  that  certain  acts  by  certain  ordinances  and 
laws  do  not  damage  private  property,  then  the  court, 
jury  and  commissioners  have  nothing  to  do.  There  can 
not  be  just  comi)ensation  for  damaging  private  prop- 
erty which  is  not  damaged.  There  cannot  be  just  com- 
pensation for  taking  ])rivate  property  which  is  not  tak- 
en. Either  the  Legislature  must  detennine  what  is  a 
taking,  what  is  a  damaging,  and  what  is  just  compensa- 
tion, or  it  must  be  done  by  court  and  juiy.  There  can 
be  no  middle  ground. 

There  can  be  no  tax  without  statute  authority. 
There  is  no  common  law  for  taxation.  One  theory  is  that 
the  Legislature  determines  finally  and  conclusively  the 
fact  and  amount  of  benefit.  How  can  there  be  just  com- 
pensation for  damaging  property  which  is  benefited,  and 
if  it  is  benefited  how  is  it  damaged!  Here  we  have  the 
legislative  determination  that  Mrs.  Smith's  land  was 
benefited  to  the  extent  of  the  amount  of  the  tax-bill 
($300),  and  that  legislative  determination  is  conclusive. 
We  have  the  judicial  determination  that  Mrs.  Smith's 
land  was  damaged  to  the  extent  of  $2,750,  and  this  ju- 
dicial determination  is  conclusive.  So  Mrs.  Smith  com- 
pels Kansas  City  to  pay  her  $2,750  and  costs  for  hav- 
ing benefited  her  property  $300.  The  legislative  de- 
termination of  the  fact  and  amoimt  of  benefit  are  con- 
clusive for  it  rests  alike  "Upon  the  conclusive  presump- 
tion indulged  hy  Congress  in  one  case  and  the  charter 
in  the  other,  that  such  an  improvement  is  a  benefit  to 
the  abutting  property"  (158  Mo.  551). 

Here  the  conclusive  legislative  determination  was 
first  made  that  Mrs.  Smith's  abutting  property  would 
be  benefited  to  the  extent  of  the  cost  of  the  work ;  then 


286  Law  of  Local  Taxation.  [Chap.  12 

tlie  city  did  the  work  and  thereby  damaged  Mrs. 
Smith's  abutting  property  to  the  extent  of  $2,750,  for 
which  in  a  suit  against  the  city  she  recovered  that 
amount,  thereby  conclusively  proving  that  Mrs. 
Smith's  property  was  damaged  to  that  amount,  the 
conclusive  legislative  determination  still  remaining  in 
force  that  this  same  property  was  by  the  same  (dam- 
age) act  benefited  $300. 

It  does  seem  a  monstrous  injustice  to  compel  Kan- 
sas City  to  pay  Mrs.  Smith  $2,750  for  conclusively  ben- 
efiting her  property  to  the  extent  of  $300.  And  it  seems 
a  monstrous  injustice  to  compel  Mrs.  Smith  to  pay 
three  hundred  dollars  for  damaging  her  property 
$2,750;  the  damage  being  absolutely  conclusive  in  fact 
and  amount. 

The  regular  course  is  this  under  the  Kansas  City 
Charter  of  1889:  First,  the  ordinance  to  grade  is 
passed.  Second,  the  ordinance  is  filed  in  the  circuit 
court  with  a  petition  and  notice  is  given  Mrs.  Smith  to 
appear,  and  if  she  claimed  damages  she  must  state  the 
amount.  (Here  Mrs.  Smith  was  not  a  party  and  had 
no  notice  and  was  not  bound  and  hence  the  suit  for 
damages  was  brought  after  the  damage  was  done.) 
The  regular  course  was  then  to  appoint  commissioners 
who  would  ascertain  if  there  were  any  damages  and 
how  much,  and  then  when  these  damages  are  paid  (say 
$2,750,  as  found  by  court  and  jury)  then  the  grading 
proceeds  and  when  completed  Mrs.  Smith  must  pay 
$300  benefit  for  doing  her  property  this  $2,750  damage. 
In  this  law  (including  in  the  term  ''law"  the  Constitu- 
tion and  the  charter  of  Kansas  City),  it  is  absolutely 
conclusive  that  this  property  was  conclusively  bene- 
fited to  the  extent  of  three  hundred  dollars  by  an  act 
which  was  a  conclusive  damage  to  it  of  $2,750.  Con- 
clusive damages  to  personal  property  may  be  con- 
verted into  conclusive  benefits  at  no  distant  day.     In 


Chap.  12  J        Results— Inconsistencies.  287 

this  case  the  net  result  was  that  Mrs.  Smith's  property 
was  damaged  $2,750,  for  doing  which  damage  she  had 
to  pay  $300. 

The  city  can  do  no  act  except  by  agent.  For  do- 
ing wrongful  acts  both  principal  and  agent  are  liable 
to  the  party  injured  for  the  injury  done.  This  has  been 
the  general  rule  of  law  in  all  cases,  but  here  we  have 
an  exception.  Here  the  contractor,  the  agent  does  the 
prohibited  act  and  must  be  paid  for  it.  You  cannot 
damage  private  property  for  x)ublic  use,  but  you  may 
hire  it  done,  and  the  laborer  is  worthy  of  his  hire;  and 
the  damaged  property  must  pay  the  damaging  contrac- 
tor his  full  hire  for  injuring  the  owner's  property. 

It  is  true  that  Mrs.  Smith  recovered  $2,750  from 
the  city,  one  of  the  wrongdoers,  but  this  was  only  after 
a  long  and  expensive  litigation  and  after  her  property 
had  been  disturbed  contrary  to  tlie  intent  of  the  Con- 
stitution, which  plainly  requires  payment  in  advance 
of  the  taking  as  well  as  in  advance  of  the  damaging. 
If  the  State  of  Missouri  had  done  this  act  of  damaging, 
then  the  State  cannot  be  sued  as  Kansas  City  was  sued 
in  Smith  r.  Kansas  Citif,  128  :\ro.  23.  If  the  land  had 
been  taken  perhaps  ejectment  would  lie  against  any  per- 
son in  possession,  but  here  damage  has  been  done,  dam- 
age forbidden  by  the  Constitution ;  the  property  cannot 
be  restored  undamaged  to  the  owner.  The  State's  agent 
or  contractor  can  sue  the  owner  of  the  damaged  prop- 
erty and  recover  his  contract  price  to  the  full  extent 
of  the  value  of  the  land  and  all  improvements  on  the 
land,  and  yet  that  same  tax  if  levied  according  to  bene- 
fit would  have  been  unconstitutional  if  the  work  was  a 
general  benefit  to  the  lot.  Just  think  of  it !  That  tax- 
bill  would  have  been  unconstitutional  if  it  had  been  a 
general  benefit.  This  $2,750  damage  was  the  only  thing 
that  saved  this  $300  tax-bill  from  being  unconstitu- 
tional. 


288  Law  of  Local  Taxation.  [Chap.  12 

In  Keith  r.  Bingham,  1()0  Mo,  300,  and  Smith  v. 
Kansas  City,  128  Mo.  23  (both  grading  cases,  i.  e.,  tax- 
ation for  grading),  it  was  not  the  local  tax  or  special 
tax-bills  that  did  the  damage— it  was  the  grading.  The 
issue  of  the  special  tax-bills  was  not  a  benefit  or  dam^ 
age.  If  the  grading  did  a  damage,  the  special  tax-bill 
did  not  increase  or  diminish  it  or  convert  the  damage 
into  a  benefit.  The  damage  would  have  been  the  same 
if  the  special  tax-bill  had  never  been  issued. 

In  Smith  v.  Kansas  Citij,  128  Mo.  23,  if  Kansas 
City  did  not  Wolate  the  Constitution,  how  could  Mrs. 
Smith  get  a  judgment  against  the  city  for  $2,750.  If 
Kansas  City  did  violate  the  Constitution,  how  can  she 
tax  for  it !  How  can  she  tax  the  verj^  person  and  prop- 
erty intended  to  be  protected?  If  Kansas  City  did  not 
violate  the  law,  how  could  Mrs.  Smith  get  a  judgment 
against  the  city  for  $2,750!  If  Kansas  City  did  violate 
the  law,  how  can  she  tax  the  injured  person  and  the  in- 
jured property  to  pay  for  it?  If  Kansas  City  did  not 
^iolate  the  Constitution  or  the  law,  how  can  there  be  a 
judgment  against  the  city  for  $2,750?  If  she  did  vio- 
late the  Constitution  or  the  law  or  both,  how  can  she 
tax  the  injured  owner  or  injured  property  for  it?  It 
was  the  ver^-  object  of  the  Constitution  to  protect  Mrs. 
Smith  and  her  property.  Our  cities  can  take  private 
property  for  public  use  without  just  compensation,  else 
why  the  prohibition?  Wliy  prohibit  damaging  private 
property  for  public  use  if  it  cannot  be  damaged?  Wby 
prohibit  an  act  that  cannot  be  done?  If  the  thing  can- 
not be  done,  why  prohibit  it?  Why  make  the  prohibi- 
tion? The  English  Parliament  cannot  do  an  act  phys- 
ically impossible;  our  cities  can.  Here  we  have  $2,750 
as  the  damage  of  a  benefit,  and  $300  as  the  benefit  of  a 
damage.  The  English  Parliament  cannot  make  a  $2,750 
damage  to  a  person  or  his  property  a  $300  benefit  to 
that  person  or  his  property;  our  North  American  cit- 


Cliap.  12]  Results— Inconsistencies.  289 

ies,  towns  and  villages  pan.  This  is  worse  than  a 
South  American  revolution. 

This  doctrine  is  the  quintessence  of  malicious  an- 
archy in  its  most  hideous  fonn.  Tt  betokens  a  return 
to  savageiy  and  l>arl)arity.  The  most  absolute  and 
despotic  government  on  earth  never  has  done  and  never 
can  do  worse.  The  arch  fiends  and  devils  of  hell,  with 
all  their  legendaiy  tendencies  to  evil,  cannot  equal 
much  less  excel  it! 

"Property  which  is  wliolly  and  exclusively  within 
the  jurisdiction  of  another  State  received  none  of  the 
protec(tion  for  which  the  tax  is  supposed  to  be  the  com- 
pensation." [T'nion  Transit  Company  v.  Kentucky, 
199  U.  S.  194,  1.  c.  204  (Temp.  Nov.,  1905).]  But  if  the 
State,  the  city,  town  or  village  (the  protector)  had 
damaged  the  propert}^  to  be  protected,  then  this  traitor, 
Judas-like,  has  the  power  to  tax.  This  cor^wration,  the 
creature  of  Kentucky  statute  law,  has  grown  beyond 
its  creator.    Say  the  court  in  effect : 

These  Kentucky  cars  were  used  in  Illinois  and 
taxable  in  Illinois  only.  If  these  Kentucky'  c^irs  re- 
ceived protection  from  Illinois  law;  if  they  received  a 
benefit  from  Illinois  law,  the  cars  ought  to  pay  for  the 
value  received.  But  should  that  prohibit  Kentucky 
from  taxing  these  cars  also  if  Kentucln^  benefited  the 
cars  or  their  owner? 

Is  it  no  benefit  to  this  Kentuckj^  c.oriK)ration  for 
the  State  of  Kentucky  to  confer  on  it  the  power  to  hold 
and  use  these  cars?  Illinois  ought  yet  to  pass  a  law 
to  tax  Dr.  Emerson  for  two  years  for  holding,  owning 
and  using  his  slaves,  Dred  Scott  and  his  wife  and  two 
children,  at  Rock  Island,  Illinois.  Dr.  Emerson 
surgeon,  in  United  States  Army  was  protected  in 
his  property  in  these  slaves  and  he  ought  to  pay  a  tax 
in  Illinois  for  it.     Would  such  taxation  in  Illinois  ex- 

19 


290  Law  of  Local,  Taxation.  [Chap.  12 

elude  Missouri  from  taxing  these  slaves  1  Slaves  were 
no  more  movable  than  railroad  cars,  perhaps  not  as 
much  [Dred  Scott  v.  Sanford,  19  Howard  393,  et  seq.] 
The  State  of  Missouri  through  the  Kansas  City  Char- 
ter and  her  council  damaged  Mrs.  Smith  $2,750  and 
the  tax  was  valid.  Kentucky  refrained  from  damage— 
conferred  a  benefit— and  her  tax  was  invalid.  Such  is 
the  irony  of  fate. 


CHAPTER  13. 

EXISTING  STATE  OF    CONSTITUTIONAL    LAW^    AND    REMEDIES 

PROPOSED. 

We  liave  seen  that  the  Missouri  Constitution  it- 
self })laces  limitations  on  the  amount  of  state  taxes, 
county  taxes,  city,  town  and  village  taxes  that  may  be 
levied  under  legislative  authority.  No  limitations 
would  exist  but  for  these  constitutional  prohibitions 
or  restrictions.  Every  Legislature  of  every  State  in 
the  Union  has  had  and  has  the  power  to  limit  the 
amount  of  taxes  to  be  levied  by  counties,  cities,  towns 
and  villages,  including  special  taxing  districts  to  be 
formed  at  the  pleasure  of  the  Legislature  (with  such 
powers  and  with  such  limitations  as  the  Legislature 
may  provide). 

Under  article  8,  section  9  of  the  Constitution  of 
New  York,  the  New  Lork  Legislature  may  authorize  a 
count}^  tax  of  one  hundred  per  cent.  The  Legislature 
irijay  authorize  an  assessment  of  one  hundred  per  cent. 
The  Legislature  shall  pass  laws  to  restrict  these  var- 
ious taxes  and  assessments  and  debts.  The  Constitu- 
tion of  New  York  does  not  restrict  cities  in  making 
debts  or  levying  taxes  or  in  making  local  assessments. 
In  New  York  a  city  tax  may  be  fifty  per  cent  of  all 
taxable  property,  so  far  as  the  New  York  Constitution 
is  concerned.  The  Legislature  shall  limit  city  debts, 
taxes  and  assessments.  Suppose  the  Legislature  does 
not  act— does  not  limit — then  the  power  is  without  lim- 
it. There  is  no  power  in  the  State  to  compel  the  Legis- 
lature to  act  and  fix  limits.  The  courts  cannot  man- 
damus the  Legislature  to  act :  one  co-ordinate  branch 

(291) 


292  Law  of  Local  Taxation.  [Chap.  13 

of  the  g-overnnient  cannot  compel  another  equal  co-or- 
dinate branch  of  the  government  to  act;  the  judicial 
department  cannot  sustain  a  writ  of  error  against  the 
legislative  department.  A\Tien  the  New  York  Legisla- 
ture authorizes  an  assessment  (local)  of  one  hundred 
per  cent  to  pay  for  a  local  improvement,  and  the  city 
makes  it,  then  the  New  York  Legislature  did  just  what 
the  Constitution  gave  them  authority  to  do,  and  the 
city  did  just  what  the  Legislature  intended  them  to  do. 
In  creating  debts,  in  le\^dng  assessments,  and  in  levy- 
ing taxes,  the  cities  of  New  York  and  the  Legislature 
of  New  York  are  not  governed  by  the  Constitution  of 
New  York,  according  to  the  plain  terms  and  meaning 
of  that  instrument. 

In  Missouri,  cities  may  be  authorized  to  \evj  one 
per  cent  only ;  in  New  York  it  may  be  one  hundred  per 
cent.  The  New  York  Legislature  may  authorize  a  debt 
of  one  hundred  per  cent  of  the  whole  property ;  here  in 
Missouri  it  can  never  exceed  five  per  cent.  In  New  York 
the  tax,  the  assessment,  can  take  it  all ;  in  Missouri  only 
five  per  cent.  But  in  Missouri  it  is  only  in  these  latter 
days  that  the  cities,  towns  and  villages  were  judicially 
authorized  to  damage  property  fifty  per  cent  and  then 
tax  the  damaged  property  fifty  per  cent  to  pay  the  dam- 
ages. 

The  New  York  Constitution  requires  her  Legisla- 
ture to  restrict  the  power  of  assessment,  taxation  and 
creating  debts  "So  as  to  prevent  abuses  in  assessments 
and  contracting  debts  by  such  municipal  corporations." 
The  Missouri  Constitution  fixes  the  limit;  the  New 
York  Constitution  does  not.  The  Missouri  Legislature 
cannot  go  beyond  the  constitutional  limit  in  her  Con- 
stitution ;  in  New  York  there  is  no  constitutional  limit 
at  all,  either  on  the  Legislature  or  the  cities;. on  the 
contrary,  the  command  in  the  New  York  Constitution 
to  the  New  York  Legislature  is,  to  fix  the  limit ;  other- 


Chap.  13]      State  of  Constitutional  Law.  293 

wise  none  exists.  There  is  no  way  to  compel  the  Legisla- 
ture to  make  any  limit  or  to  pass  any  law. 

The  New  York  Legislature  iimst  restrict  certain 
powers  so  as  to  prevent  abuses,  etc.  This  means  that 
there  may  be  abuses,  as  for  instance,  when  the  tax  is 
for  more  than  the  value  of  the  property  for  a  work 
which  was  an  injury  to  the  taxed  property.  The  Con- 
stitution does  not  restrict  so  as  to  prevent  abuses.  The 
danger  of  abuse  is  admitted.  The  fact  of  abuse  is  ad- 
mitted. New  York  may  abuse  a  granted  power.  The 
Missouri  Constitution  prohibits  this  power  which  the 
New  York  Constitution  directs  her  Legislature  to  so 
restrict  as  to  prevent  abuse.  A  prohibited  power  can- 
not be  abused ;  a  granted  power  may  be  abused. 

The  decisions  of  the  courts  of  those  states  whose 
constitutions  do  not  contain  provision  like  that  of  New 
York,  give  no  reasons  for  so  holding  except  that  the 
courts  have  always  so  held.  Each  decision  of  each 
court  is  a  mere  "brutum  fulmen." 

In  Inhabitants  of  Palmyra  v.  Morton  (A.  D.  1857), 
25  Mo.  593,  at  595,  the  Supreme  Court  of  Missouri  say : 

"Though  the  public  convenience  was  promoted  by 
making  the  pavement  on  the  street  designated  in  tlie 
ordinance,  yet  it  was  essentially  a  local  improvement 
and  it  was  proper  that  the  owner  or  occupant  of  the 
property  fronting  on  it  should  hear  the  burden  of  its 
cost,"  referring  to  Locknood  v.  St.  Louis,  24  Mo.  20 
(A.  D.  1854).  The  action  of  debt  was  given  against  the 
owner  or  occupier.  There  was  no  lien  on  the  land,  to 
be  enforced.     Continuing  the  court  say: 

''Examples  of  local  assessments  for  partial  im- 
provements are  familiar  in  the  legislation  of  states  and 
municipal  corporations.  The  subject  has  been  thor- 
oughly discussed  and  every  principle  bearing  on  it  se- 
verely analyzed  in  almost  every  state  of  the  Umon 
u^iere  the  pouer  has  been  exercised;  and  it  is  now  as 


294  Law  of  Local  Taxation.  [Chap.  13 

firmly  esfablislied  as  any  other  doctrine  of  America/n 
law."  [25  Mo.  supra.]  This  law  was  enacted  in  1845 
(Laws  of  Missouri  1845,  p.  151)  twenty-four  years  af- 
ter the  admission  of  the  State.  The  ordinance  was 
enacted  and  the  work  done  in  1853.  This  statute  made 
the  owner  personally  liable — now  repudiated.  This 
statute  made  the  mere  occupant  personally  liable;  the 
mere  occupant  was  personally  liable. 

Each  county  builds  its  own  jail  and  court-house 
[Just  tliink  of  being  close  to  a  jail ;  what  a  transcend- 
ental advantage  that  is  to  a  man  and  his  wife,  raising 
the  family  of  boys  and  girls],  erects  bridges  and  opens 
roads,  and  the  expenses  for  such  purposes  are  defrayed 
by  a  county  tax.  Public  roads  are  worked  and  kept  in 
repair  by  the  inhabitants  of  particular  districts; 
marshes  are  drained  and  river  banks  are  leveed  and 
the  expenses  of  these  improvements  are  charged  upon 
the  persons  in  the  vicinity,  although  the  public  is  ben- 
efited by  them.  So  in  towns,  wells  and  cisterns  are  dug 
and  kept  in  repair  at  the  expense  of  particular  limits ; 
and  in  cities,  public  parks  and  wharves  are  established, 
streets  are  opened  and  paved,  sewers  are  made,  water 
pipes  are  laid  and  the  expenses  thereof  are  charged  to 
the  property-holders  immediately  benefited  thereby.  It 
is  the  exercise  of  the  same  power  that  authorizes  dis- 
tricts, counties  or  towns  to  subscribe  for  public  im- 
provements. [27  Miss.  224 ;  5  Gilm.  405 ;  1  McCook  77 ; 
9  Ben  Monroe  526;  9  Humph.  252;  4  Coms.  423.] " 

Here  is  a  clear  analog}^  between  tax-bills  and  mu- 
nicipal bonds.  Here  it  is  said  that  this  sidewalk  was 
"essentially  a  local  improvement  and  it  was  proper 
that  the  owner  or  occupant  of  the  property  fronting  on 
it  should  bear  the  burden  of  its  cost." 

The  liability  is  on  the  occupant.  "We  must  intend 
that  the  court  meant  to  include  a  lawful  occupant  in 
possession  as  tenant.      On  this  subject  the  Supreme 


Chap.  13]     State  of  Constitutional  Law.  295 

Court  of  Missouri,  at  October  term,  1903,  in  the  case  of 
Ford  V.  Kansas  City,  181  Mo.  137,  at  page  148-9,  say : 

''It  may  be  conceded  that  tlie  municipal  corpora- 
tion may  impose  upon  municipal  lotowners  the  burden 
of  the  duty  of  keeping  the  walks  in  front  of  their  prem- 
ises in  reasonably  safe  repair,  and  enforce  the  same  by 
special  tax-bills,  or  penalties  for  failing  to  perform 
such  duty;  but  we  are  unwilling  to  extend  tliis  power 
to  a  mere  occupant  of  property  to  keep  in  repair  the 
walks  in  front  of  the  property  occupied  by  him.  This 
duty  could  only  be  enforced  against  a  tenant  by  a  judg- 
ment in  the  nature  of  a  fine  for  failing  to  perfonn  his 
duty;  no  tax-bill  could  be  issued  against  him  because 
he  is  not  the  owner  of  the  property.  The  city  has  ab- 
solute control  of  its  streets  and  sidewalks  [and,  it  seems 
to  this  writer,  practically  over  the  abutting  lots]  and 
under  the  law  it  must  keep  them  in  a  reasonably  safe 
condition,  and  this  duty  cannot  be  evaded,  suspended 
or  shifted  upon  others  by  any  act  of  its  own.  [Welsh 
V.  St.  Louis,  73  Mo.  71;  Russell  v.  Town  of  Columbia, 
74  Mo.  480.] 

"The  keeping  of  sidewalks  in  safe  repair,  in  a 
large  and  populous  city  means  in  many  instances,  the 
doing  of  a  large  amount  of  substantial  work,  and  if 
cities  can  impose  this  burden  and  duty  upon  mere  ren- 
ters of  property,  we  confess  those  li\'ing  in  such  cities, 
who  are  so  unfortunate  as  not  to  be  able  to  own  the 
property  occupied  by  them,  are  at  the  mercy  of  charter 
frame  rs. 

"It  is  unnecessary  to  express  an  opinion  as  to  that 
part  of  the  ordinance  relating  to  the  removal  of  snow 
and  ic«  from  the  walks  by  the  occupant,  for  that  fea- 
ture of  the  ordinance  is  not  involved  in  this  cause ;  but 
upon  the  question  of  imposing  the  duty  of  keeping  the 
sidewalks  in  safe  repair  by  the  mere  occupant,  who  is 
not  the  owner,  we  unhesitatingly  say  that  the  charter 


296  Law  of  Local  Taxation.  [Chap.  13 

provision  and  the  ordinance  predicated  upon  it,  ivMch 
authorizes  the  exercise  of  such  poiver,  is  unconstitu- 
tional and  void.  We  have  searched  in  vain  for  author- 
ity which  sanctions  the  exercise  of  any  such  power.  We 
readily  comprehend  the  reason  for  imposing  the  duty 
of  street  improvements  and  repair  upon  the  property- 
owners,  for  such  burdens  of  taxation  are  repaid  in  the 
enhancement  of  the  value  of  the  property,  but  no  such 
reason  can  be  assigned  as  to  the  tenants  occupying  the 
property. ' ' 

Ford,  the  tenant,  rented  this  property  from  J.  B. 
Morrison.  That  leasehold  was  an  interest  in  land.  He 
was  in  possession  and  had  the  right  to  the  possession 
and  use  of  the  property  at  the  time  the  injury  on  the 
adjoining  sidewalk  occurred.  This  tenant  had  the  ex- 
clusive right  to  the  possession  and  use  of  the  land  and 
this  right  of  way,  the  adjoining  sidewalk.  The  owner 
of  the  remainder  in  fee  could  not,  against  the  tenant's 
will,  enter  this  property  by  this  sidewalk  without  being 
liable  as  a  trespasser.  The  property  was  as  miuch  his 
as  though  he  had  a  deed  to  it  in  fee  simple.  The  de- 
cision assumes  that  repairing  this  sidewalk  was  no  ben- 
efit to  the  tenant  who  occupied  the  property  and  used 
the  sidewalk.  Of  what  value  would  this  lease  be;  of 
what  value  would  the  fee  simple  be  if  the  owner  or  ten- 
ant could  not  get  to  his  property  leased  or  owned  in 
fee?  If  this  sidewalk  had  been  repaired,  Mr.  Ford 
would  have  suffered  no  injury.  Is  it  possible  that  this 
was  no  benefit  to  Mr.  Ford?  Is  it  no  benefit  to  Mr. 
Ford  to  have  a  right  of  way  to  and  from  his  home  free 
from  danger  to  life  and  limb?  Repairing  this  sidewalk 
according  to  this  decision  was  no  benefit  to  Mr.  Ford, 
while  a  $2,750  damage  to  Mrs.  Smith's  house  and  lot 
(128  Mo.  23)  was  a  three-hundred-dollar  benefit  to  her. 
If  the  city  cannot  impose  this  duty  on  the  tenant  who 
is  actually  benefited  (would  have  been  in  this  case) 


Chap.  13]     State  of  Constitutional  Law.  297 

ought  a  like  duty  to  be  imposed  on  a  fee  simple  owner 
who  ife  damaged? 

The  duty  imposed  on  the  party  benefited  is  uncon- 
stitutional; the  duty  imposed  on  the  ])ai'ty  damaged  is 
constitutional. 

Suppose  ^Ir.  Ford  had  owned  in  fee  this  house  and 
lot,  would  the  city  have  been  liable?  If  a  sidewalk  can 
be  a  sjjecial,  peculiar,  exceptive  benefit  to  anyone,  that 
person  so  benefited  specially,  peculiarly,  exceptively  is 
the  one  above  all  others  on  whom  the  burden  should  \ye 
cast.  He  who  receives  the  benefit  ought  to  bear  the  bur- 
den. Here  was  a  loose  plank  in  this  sidewalk.  It 
tri])ped  Mr.  Ford  when  his  son  stepped  first  on  the 
loose  plank.  Repairing  this  loose  i^lank  would  have 
saved  Mr.  Ford  all  this  pain,  anguish  and  misery.  Less 
than  two  minutes  would  have  nailed  this  plank  so  as  to 
prevent  this  injury.  Mr.  Ford  used  the  sidewalk  daily. 
Why  did  he  fail  to  discover  the  defect  in  this  plank 
walk,  which  walk  was  a  special,  peculiar,  exceptive  ben- 
efit to  him  as  occupant  of  the  property,  and  the  only 
person  who  had  a  special  interest  and  benefit  in  it.  It 
is  said  that  the  keeping  of  sidewalks  in  safe  repair  in- 
volves doing  a  large  amount  of  substantial  work.  Nail- 
ing this  plank  down  was  a  very  small  affair  to  the  one 
who  used  it  daily  with  full  opi)ortunity  to  know  that  the 
plank  was  loose  and  the  walk  was  dangerous.  The  city 
must  have  better  eyes  for  defects  in  sidewalks  than  the 
person  who  has  a  special  property  interest  in  it  and 
who  uses  that  in'0]>erty  interest  daily. 

Owners  in  fee  simple,  however,  are  now  at  the  mer- 
cy of  charter  framers.  Their  property  may  be  made 
liable  by  special  tax  to  the  extent  of  one  hundred  per 
cent  of  the  value  of  the  land  and  one  hundred  per  cent 
of  all  buildings  tbereon,  to  pay  for  a  street  improve- 
ment worth  nothing  to  the  landowner  and  even  a  dam- 
age to  him.     Gentle  reader,  don't  you  think  we  need  a 


298  Law  of  Local  Taxation.  [Chap.  13 

change  of  constitutional  law?  This  tenant  leased  this 
house  and  lot  under  a  lease  at  will,  or  from  month  to 
month,  or  for  years.  A  tenant  for  a  term  is  bound  to 
pay  rent  during  his  tenn,  notwithstanding  the  destruc- 
tion of  the  premises  by  wear  or  by  fire  or  othei-wise. 
His  term  in  the  house  and  lot  burns  up  and  he  must 
pay  the  price  for  it  just  as  though  the  price  was  for  a 
fee  simiDle  in  place  of  an  estate  at  will  or  for  years. 

"The  constitutional  power  to  authorize  the  rendi- 
tion of  a  personal  judgment  in  such  case  was  not  con- 
sidered or  argued  (in  St.  Louis  to  use  of  McGrath  v. 
Clemens,  36  Mo.  467),  and  the  same  may  be  said  as  to 
the  cases  of  the  City  of  St.  Louis  to  use  of  Lohrum  v. 
Coons,  37  Mo.  44,  and  Fowler  v.  City  of  St.  Joseph,  37 
Mo.  228,  and  The  Inlmbitants  of  Palmyra  v.  Morton, 
25  Mo.  593." 

"In  none  of  these  cases,  nor  in  any  other  case  in 
this  State  to  which  we  have  been  referred,  was  the  con- 
stitutional i^ower  of  the  Legislature  to  authorize  mu- 
nicipal corporations  to  make  these  local  improvements 
and  assess  the  cost  against  the  adjoining  property,  and 
then  recover  a  personal  judgment  against  the  owner  of 
the  property  for  the  amount  assessed,  ever  brought  di- 
rectly in  question  or  discussed."  [City  of  St.  Louis  to 
use  V.  Allen,  53  Mo.  loc.  cit.  51.] 

"These  special  assessments  are  found  in  the  En- 
glish law,  and  have  prevailed,  it  is  believed,  in  most, 
if  not  all,  of  our  American  states,  and  their  validity, 
when  assessed  as  in  this  instance,  cannot  be  questioned 
under  our  constitution."  [Lockivood  v.  St.  Louis,  24 
Mo.  loc.  cit.  22.] 

Continuing  the  court  says :  ' '  Their  intrinsic  jus- 
tice strikes  every  one." 

T\Tien  Mrs.  Smith  had  to  pay  $300  (67  Mo.  App. 
205)  for  damaging  her  property  to  the  extent  of  $2,750 
(128  Mo.  23),  in  such  cases,  it  ought  not  to  be  said  of 


Chap.  13]      State  of  Constitutional  Law.  299 

such  special  taxes  that  "their  intrinsic  justice  strikes 
every  one."  There  is  no  intrinsic  justice  in  a  local  tax 
of  $300  on  local  property  for  doing  that  local  property 
a  local  damage  of  $2,750,  al>ove  all  l>enefits  conferred  on 
it  by  the  acts  of  the  public.  "Justice"  is  completely 
paralyzed. 

In  Lockivood  v.  St.  Louis,  20  Mo.  loc.  cit.  23,  the 
court,  in  speaking  of  exemptions  from  taxes  and  in  dis- 
tinguishing local  from  general  taxes,  say : 

"The  court  held  that  this  [exemption]  referred,  to 
general  taxes  to  be  assessed  for  the  benefit  of  the  town, 
coimty  or  State  at  large;  that  to  pay  for  the  opening 
of  a  street,  in  i)roportion  to  the  benefit  derived  from 
it,  was  no  burden,  and  therefore  no  tax  within  the 
meaning  of  the  law;  and  finally  that  the  maxim,  that 
he  who  feels  the  benefit  ought  to  feel  the  burden  also, 
was  consistent  with  the  interests  and  dictates  of  science 
and  religion." 

This  sewer  in  St.  Louis,  the  street  grading  in  Kan- 
sas City  (128  Mo.  23,  and  67  Mo.  App.  205),  on  Locust 
street  and  on  May  street  (100  Mo.  300)  were  works 
which  the  cities  could  have  been  and  were  authorized 
to  do  and  make  payment  therefor  by  the  levy  of  gen- 
eral city  taxes  on  all  real  and  personal  property  in  the 
cities  doing  the  work  and  leyvnng  the  tax.  The  sewer 
tax  and  the  grading  tax  would  then  have  been  burdens 
on  all  St.  Louis  and  Kansas  City. 

That  burden,  according  to  the  later  rules  of  consti- 
tutional law,  ceases  when  the  whole  tax  is  placed  on 
specified  property,  all  other  property  being  exempt 
from  the  tax,  although  sixty  thousand  times  as  much. 
Take  Mrs.  Smith's  lot  (128  Mo.  23) :  the  tax  was  three 
hundred  dollars.  Counting  the  assessed  value  of  all  the 
property  in  Kansas  City  at  $45,000,000,  :Mrs.  Smith's 
part  of  this  $300,  special  tax  is  one  two-hundredth  part 
of  one  cent,  and  this  enormous  tax  of  one  two-hun- 


300  La\\  of  Local  Taxation.  [Chap.  13 

dredtli  part  of  one  cent  is  a  burden  too  grievous  to  be 
borne,  but  this  three  hundred  dollar  special  tax  is  not 
a  burden  even  when  the  work  to  pay  for  which  it  was 
levied  was  a  $2,750  damage.  Is  this  the  meaning  of 
the  framers  of  the  Constitution?  Multiply  this  bur- 
densome tax  of  one  two-hundredth  part  of  one  cent  by 
sixty  thousand;  it  will  then  cease  to  be  a  burden  even 
if  levied  to  pay  for  doing  the  work  occasioning  a  dam- 
age to  the  property  fifty-five  million  times  the  amount 
of  the  general  tax.  In  this  stormy  ocean,  one  ton 
weight  is  a  burden  sufficient  to  carry  the  taxpayer  be- 
neath the  waves  if  tied  around  his  neck ;  but  put  around 
him  fifty-five  million  tons  and  he  will  swim  with  the 
greatest  of  ease. 

When  the  courts  so  interpret  the  Constitution  and 
the  intention  of  the  framers  of  the  Constitution  of  Mis- 
souri of  1820,  1865  and  1875,  we  believe  they  commit  a 
serious  error.  Such  inteiTDretation  renders  the  titles  to 
real  estate  insecure. 

Williams  v.  Cammack,  27  Miss.  209,  at  224,  re- 
ferred to  in  25  Mo.  593, 1.  c.  595,  bases  the  power  on  the 
theory  that  works  of  a  public  nature  may  be  accom- 
plished and  a  local  tax  be  levied  to  pay  for  them  even 
if  the  acts  done  are  an  injury  to  the  property  taxed. 

''They  [these  acts]  must  be  submitted  to  as  the 
necessaiy  action  of  the  machinery  of  government  and 
as  individual  sacrifices  to  the  general  good,  in  order 
that  the  advantages  of  the  social  compact  may  be  en- 
joyed. This  principle  rests  in  the  very  foundations  of 
society  and  is  illustrated  in  every  day's  experience  of 
the  citizen,  yielding  his  natural  rights,  even  of  life,  lib- 
erty or  property,  to  the  public  good.  But  he  can  only 
claim  immunity  when  it  is  secured  to  him  by  the  prin- 
ciples of  the  Constitution." 

This  decision  was  rendered  in  1854.  There  is  here 
nothing  different  from  our  own  decisions  in  Missouri 


Chap.  13]      State  of  Constitutional  Law.  301 

(and  elsewhere)  in  67.  Louis  c.  Peter  Gurno,  12  Mo. 
414,  and  Taylor  v.  St.  Louis,  14  Mo.  20. 

The  state  government  cannot  now,  in  the  exercise 
of  any  of  its  i)0wers,  damage  private  property  for  pub- 
lic use.  There  is  now  the  same  obligation  to  make 
*'just  compensation"  for  damaging  as  for  taking.  It 
is  said,  and  with  truth,  that  these  taxes  are  found  in 
the  English  law:  "Those  S])ecial  assessments  are  found 
in  the  English  Law"  (20  Mo.  22).  It  is  true  that  these 
taxes  exist  and  always  have  existed  in  England.  Tn 
England,  taxes  are  levied  under  an  act  of  Parliament 
and  this  act  of  Parliament  is  always,  in  all  cases,  ab- 
solutely supreme.  Parliament  had  the  right  to  tax  the 
American  and  all  other  colonies  in  all  cases  whatsoever. 
No  such  thing  is  known  in  English  history  as  an  act 
of  Parliament  being  void  on  account  of  its  conflict  with 
the  English  Constitution.  Acts  of  Congress  and  of 
the  various  state  legislatures  in  the  United  States  are 
different.  We  acquired  Louisiana  when  the  United 
States  Constitution  was  only  fourteen  years  old.  That 
Constitution  was  only  twenty-three  years  old  when 
Missouri  Territoiy  was  formed,  and  only  thirty-two 
when  Missouri  was  admitted  as  a  State. 

One  Parliament  cannot  enact  any  law  which  a  sub- 
sequent Parliament  may  not  repeal.  Congress  cannot 
pass  an  irrepealable  law.  One  state  legislature  cannot 
enact  a  law  which  a  subsequent  legislature  may  not  re- 
peal. Parliament  consists  of  king,  lords  (temporal  and 
spiritual)  and  commons.  We  have  in  the  United  States 
the  President,  the  Senate,  and  House  of  Representa- 
tives. In  each  State  we  have  the  Governor,  the  Senate 
and  House  of  Representatives.  The  English  House  of 
Lords  has  judicial  powers.  The  Senate  of  the  United 
States  has  not.  No  state  Senate  has  any  judicial  pow- 
ers except  in  a  very  limited  way  as  in  the  New  York 
senate. 


302  Law  of  Local  Taxation.  [Chap.  13 

Our  Congress  cannot  change  the  Constitution  of 
the  United  States.  No  state  Legislature  can  change  the 
state  Constitution.  Parliainicnt  can  change  the  English 
Constitution.  Acts  of  Parliament  are  omnipotent. 
Acts  of  our  state  Legislatures  and  of  Congress  are  not 
omnipotent.  The  powers  of  government  are  here  lim- 
ited by  our  constitutions. 

The  legal  force  of  a  written  constitution  is  well 
reasoned  by  Chief  Justice  John  Marshall  in  Marbury 
V.  Madison,  1  Cranch  68  to  72.  This  decision  was  ren- 
dered at  the  February  term,  1803,  of  the  Supreme 
Court  of  the  United  States,  while  the  United  States 
Constitution  was  only  fourteen  years  old,  and  in  the 
same  year  we  purchased  Louisiana.  Say  the  court, 
page  68,  bottom: 

''The  question  whether  an  act  repugnant  to  the 
Constitution  can  become  the  law  of  the  land,  is  a  ques- 
tion deeply  interesting  to  the  LTnited  States ;  but,  hap- 
pily, not  of  an  intricacy  proportioned  to  its  interest. 
It  seems  only  necessary  to  recognize  certain  principles 
supposed  to  have  been  long  and  well  established,  to  de- 
cide it.  That  the  people  have  an  original  right  to  es- 
tablish, for  their  future  government,  such  principles  as, 
in  their  opinion,  shall  most  conduce  to  their  own  happi- 
ness, is  the  basis  on  which  the  whole  American  fabric 
has  been  erected.  The  exercise  of  this  original  right 
is  a  very  great  exertion;  nor  can  it  nor  ought  it  to  be 
frequently  repeated.  The  principles,  therefore,  so  es- 
tablished are  deemed  fundamental.  And  as  the  author- 
ity, from  which  they  proceed,  is  supreme,  and  can  sel- 
dom act,  they  are  designed  to  be  permanent.  This  or- 
iginal and  supreme  will  organizes  the  government,  and 
assigns  to  different  departments  their  respective  pow- 
ers. It  may  either  stop  here ;  or  establish  certain  lim- 
its not  to  be  transcended  by  those  departments. 

''The  government  of  the  United  States  is  of  the 


Chajj.  13]     State  of  Constitutional,  Law.  303 

latter  description.  The  powers  of  the  Legislature  are 
defined  and  limited;  and  that  those  limits  may  not  l)e 
mistaken  or  forgotten,  the  Constitution  is  written.  To 
what  purpose  are  powers  limited,  and  to  what  purpose 
is  that  limitation  committed  to  writing;  if  these  limits 
nUay,  at  any  time,  be  passed  by  those  intended  to  be  re- 
strained? The  distinction  between  a  government  with 
limited  and  unlimited  powers  is  abolished,  if  those  lim- 
its do  not  confine  the  persons  on  whom  they  are  im- 
posed, and  if  acts  prohibited  and  acts  allowed  are  of 
equal  obligation.  It  is  a  proposition  too  plain  to  be 
contested,  that  the  Constitution  controls  any  legislative 
act  repugnant  to  it;  or,  that  the  Legislature  may  alter 
the  Constitution  by  an  ordinary  act.  Between  these  al- 
ternatives, there  is  no  middle  ground.  The  constitution 
is  either  a  superior,  paramount  law,  unchangeable  by 
ordinary  means,  or  it  is  on  a  level  with  ordinaiy  legis- 
lative acts,  and  like  other  acts,  is  alterable  when  the 
Legislature  shall  please  to  alter  it. 

* '  If  the  former  part  of  the  alternative  be  time,  then 
a  legislative  act  contrar^^  to  the  Constitution  is  not  law ; 
if  the  latter  part  be  true,  then  wi-itten  constitutions  are 
absurd  attempts,  on  the  part  of  the  people,  to  limit  a 
power  in  its  own  nature  illimitable.  Certainly  all  those 
who  have  framed  written  constitutions  contemplate 
them  as  fonning  the  fundamental  and  paramount  law 
of  the  nation,  and  consequently  the  theory  of  every 
such  government  must  be,  that  an  act  of  the  Legisla- 
ture, repugnant  to  the  Constitution,  is  void.  This  the- 
ory is  essentially  attached  to  a  written  constitution,  and 
is  consequently  to  be  considered  by  this  court  as  one  of 
the  fundamental  principles  of  our  society.  It  is  not, 
therefore,  to  be  lost  sight  of  in  the  further  considera- 
tion of  this  subject. 

''If  an  act  of  the  Legislature,  repugnant  to  the  con- 
stitution, is  void,  does  it  notwithstanding  its  invalidity 


3()4  Law  of  Local  Taxation.  [Chap.  13 

bind  the  courts  and  oblige  them  to  give  it  effect?  Or, 
in  other  words,  though  it  be  not  law,  does  it  constitute 
a  iiile  as  operative  as  if  it  was  law?  This  would  be  to 
overthrow  in  fact  what  was  established  in  theoiy;  and 
would  seem  at  first  view  an  absurdity  too  gross  to  be 
insisted  on.  It  shall,  however,  receive  a  more  attentive 
consideration. 

*'It  is  emphatically  the  province  and  duty  of  the 
judicial  department  to  say  what  the  law  is.  Those  who 
apply  the  rule  to  particular  cases,  must  of  necessity  ex- 
pound and  interpret  that  rule.  If  two  laws  conflict  with 
each  other,  the  courts  must  decide  on  the  operation 
of  each.  So,  if  a  law  be  in  opposition  to  the  Constitu- 
tion ;  if  both  the  law  and  Constitution  apply  to  a  partic- 
ular case,  so  that  the  courts  must  either  decide  that 
case  conformably  to  the  law,  disregarding  the  Consti- 
tution; or  conformably  to  the  Constitution  disregard- 
ing the  law,  the  court  must  determine  which  of  these 
conflicting  rules  governs  the  case. 

''This  is  of  the  very  essence  of  judicial  duty.  If, 
then,  the  courts  are  to  regard  the  Constitution;  and  the 
Constitution  is  superior  to  any  ordinary  act  of  the  Leg- 
islature; the  Constitution,  and  not  such  ordinary  act, 
must  govern  the  case  to  which  they  both  apply. 

"Those,  then,  who  controvert  the  principle  that 
the  Constitution  is  to  be  considered,  in  court,  as  a  par- 
amount law,  are  reduced  to  the  necessity  of  maintain- 
ing that  courts  must  close  their  eyes  on  the  Constitu- 
tion, and  see  only  the  law.  This  doctrine  would  sub- 
vert the  very  foundation  of  all  written  constitutions. 
It  would  declare  that  an  act  which,  according  to  the 
principles  and  theory  of  our  government,  is  entirely 
void,  is  yet,  in  practice,  completely  obligatory.  It  would 
declare  that  if  the  Legislature  shall  do  what  is  ex- 
pressly forbidden,  such  act,  notwithstanding  the  ex- 
press prohibition,  is  in  reality  effectual.     It  would  be 


Chap.  13]      State  of  Constitutional  Law.  305 

giving  to  the  Legislature  a  practical  and  real  omnipo- 
tence with  the  same  breath  which  professes  to  restrict 
their  powers  within  narrow  limits.  It  is  prescribing 
limits,  and  declaring  that  those  limits  may  be  passed  at 
pleasure.  That  it  thus  reduces  to  nothing  what  we  have 
deemed  the  greatest  improvement  on  political  institu- 
tions— a  written  constitution— would  of  itself  be  suffi- 
cient, in  America  where  written  constitutions  have  been 
viewed  with  so  much  reverence,  for  rejecting  the  con- 
struction. 

''But  the  peculiar  expressions  of  the  Constitution 
of  the  United  States  furnish  additional  arguments  in 
favor  of  its  rejection.  The  judicial  power  of  the  United 
States  is  extended  to  all  cases  arising  under  the  Consti- 
tution. Could  it  be  the  intention  of  those  who  gave  this 
power,  to  say  that,  in  using  it,  the  Constitution  should 
not  be  looked  into !  That  a  case  arising  under  the  Con- 
stitution should  be  decided  mthout  examining  the  in- 
strument under  which  it  arises?  This  is  too  extrava- 
gant to  be  maintained. 

''In  some  cases,  then,  the  Constitution  must  be 
looked  into  by  the  judges.  And  if  they  can  open  it  at 
all,  what  part  of  it  are  they  forbidden  to  read,  or  to 
obey? 

"There  are  many  other  parts  of  the  Constitution 
which  serve  to  illustrate  this  subject.  It  is  declared 
that  'No  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  state. '  Suppose  a  duty  on  the  export  of  cot- 
ton, of  tobacco,  or  flour;  and  a  suit  instituted  to  re- 
cover it.  Ought  judgment  to  l)e  rendered  in  such  case? 
Ought  the  judges  to  close  their  eyes  on  the  Constitu- 
tion and  only  see  the  law?  The  Constitution  declares 
that  'No  bill  of  attainder  or  ex  post  facto  law  shall  be 
passed.'  If,  however,  such  a  bill  should  be  passed  and 
a  person  should  be  prosecuted  under  it,  must  the  courts 
condemn  to  death  those  victims  whom  the  Constitution 

20 


306  Law  of  Local.  Taxation.  [Chap.  13 

endeavors  to  preserve!  'No  person,'  says  the  Consti- 
tution, 'shall  be  convicted  of  treason  unless  on  the  tes- 
timony of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court.'  Here  the  language  of  the 
Constitution  is  addressed  especially  to  the  courts.  It 
jDrescribes  directly  for  them,  a  rule  of  evidence  not  to  be 
departed  from.  If  the  Legislature  should  change  that 
rule,  and  declare  one  witness,  or  a  confession  out  of 
court,  sufficient  for  conviction,  must  the  constitutional 
principle  yield  to  the  legislative  act? 

''From  these  and  many  other  selections  which 
might  be  made,  it  is  apparent,  that  the  framers  of  the 
Constitution  contemplated  that  instrmiient  as  a  rule 
for  the  government  of  courts,  as  well  as  of  the  Legis- 
lature. Why,  otherwise,  does  it  direct  the  judges  to  take 
an  oath  to  support  it?  This  oath  certainly  applies,  in 
an  esj^ecial  manner,  to  their  conduct  in  their  official 
character.  How  immoral  to  impose  it  on  them,  if  they 
were  to  be  used  as  the  instruments,  and  the  knowing 
instruments,  for  violating  what  they  swear  to  support. 
The  oath  of  office,  too,  imposed  by  the  Legislature,  is 
completely  demonstrative  of  the  legislative  opinion  on 
this  subject.  It  is  in  these  words:  'I  do  solemnly 
swear  that  I  will  administer  justice  without  respect  to 
persons,  and  do  equal  right  to  the  poor  and  to  the  rich ; 
and  that  I  will  faithfully  and  impartially  discharge 
all  the  duties  incumbent  on  me  according  to  the 
best  of  my  abilities  and  understanding,  agreeably  to 
the  Constitution  and  laws  of  the  United  States.'  Wliy 
does  a  judge  swear  to  discharge  his  duties  agreeably  to 
the  Constitution  of  the  United  States,  if  that  Constitu- 
tion forms  no  rule  for  his  government?  If  it  is  closed 
upon  him  and  cannot  be  inspected  by  him?  If  such  be 
the  real  state  of  things,  this  is  worse  than  solenon  mock- 
ery. To  prescribe,  or  to  take  this  oath,  becomes  equally 
a  crime. 


Chap.  13]     State  of  Constitutional  Law.  307 

*'It  is  also  not  entirely  unworthy  of  observation, 
that  in  declaring  what  shall  be  the  supreme  law  of  the 
land,  the  Constitution  itself  is  first  mentioned;  and  not 
the  laws  of  the  United  States  generally,  but  those  only 
which  shall  be  made  in  pursuance  of  the  Constitution, 
have  that  rank. 

"Thus,  the  particular  phraseology  of  the  Constitu- 
tion of  the  United  States  confirms  and  strengthens  the 
]nnncii)le,  supposed  to  be  essential  to  all  written  consti- 
tutions, that  a  law  repugnant  to  the  Constitution  is 
void,  and  that  courts  as  well  as  other  departments,  are 
bound  by  that  instrument." 

There  are  many  kinds  of  taxation  enacted  and  en- 
forced under  the  English  Constitution  which  cannot  be 
enforced  in  the  United  States :  ' '  No  capitation  or  oth- 
er direct  tax  shall  be  laid  unless  in  proportion  to  the 
census  or  enumeration  hereinbefore  directed  to  be 
taken."  [Constitution  of  the  United  States,  article  1, 
sec.  9.]  Parliament  always  has  levied  such  taxes.  ''No 
tax  or  duty  shall  be  laid  on  articles  exported  from  any 
State."  [U.  S.  Const.,  art.  1,  sec.  9.]  Parliament  al- 
ways has  levied  such  taxes.  [See  ''  Customs, ' '  in  Black- 
stone 's  Commentaries  (3  Ed.),  by  Cooley,  vol.  1,  book 
I,  chap.  8,  page  (top)  312,  (bottom  paging)  195.] 

These  customs  were  not  by  common  law  for  "Sir 
Edward  Coke  hath  clearly  shown  that  the  king's  first 
claim  to  them  was  by  grant  of  Parliament  (3  Edw.  I), 
though  the  record  thereof  is  not  now  extant."      [lb.] 

Congress  cannot  enact  an  income  tax  law.  Parlia- 
ment can  and  has  done  so.  Parliament  may  even 
change  the  succession.  There  is  no  such  thing  as  an 
act  of  Parliament  being  against  the  English  Constitu- 
tion. 

"The  perpetual  taxes  are  (Blackstone,  vol.  I,  book 
I,  chap.  8,  page  312) :  the  customs,  or  the  duties,  toll, 
tribute,  or  tariff,  payable  upon  merchandise  exported 


308  Law  of  Local  Taxation.  [Chap.  13 

and  imported.  The  considerations  upon  which  this 
revenue  (or  the  more  ancient  part  of  it,  which  arose 
only  from  exports)  was  vested  in  the  king,  were  said 
to  be  two  (Dyer  165) :  first,  because  he  gave  the  sub- 
ject leave  to  depart  the  kingdom,  and  to  carry  his  goods 
along  with  him ;  second,  because  the  king  was  bound  of 
conunon  right  to  maintain  and  keep  up  the  ports  and 
havens,  and  to  protect  merchants  from  pirates.'*  In 
the  United  States  we  maintain  and  keep  up  ports  and 
havens  and  protect  our  merchants  from  pirates,  and 
yet  we  can  not  tax  exports. 

Sir  William  Blackstone  (in  his  Commentaries, 
book  I,  vol.  I,  p.  159  top,  102  bottom,  3rd  Ed.  by  Cooley) 
says: 

"The  power  and  jurisdiction  of  Parliament,  says 
Sir  Edward  Coke  (4  Inst.  36),  is  so  transcendent  and 
absolute,  that  it  cannot  be  confined,  either  for  causes  or 
persons,  within  any  bounds.  And  of  this  high  court,  he 
adds,  it  may  be  truly  said  '  Si  antiquitatem  spectes,  est 
vetustissima ;  si  dignitatem,  est  honoratissima ;  si  ju- 
risdictionem,  est  capacissima. '  It  hath  sovereign  and 
uncontrollable  authority  in  the  making,  confirming,  en- 
larging, restraining,  abrogating,  repealing,  reviving 
and  expounding  of  laivs,  concerning  matters  of  all  pos- 
sible denominations,  ecclesiastical  or  temporal,  civil, 
military,  maritime,  or  criminal :  this  being  the  place 
where  that  absolute  despotic  power  which  must  in  all 
governments  reside  somewhere,  is  intrusted  by  the  Con- 
stitution of  these  kingdoms.  All  mischiefs  and  griev- 
ances, operations  and  remedies  that  transcend  the  or- 
dinary course  of  the  laivs  are  within  the  reach  of  this 
extraordinary  tribunal.  It  can  regulate  or  new  model 
the  succession  to  the  crown;  as  was  done  in  the  reign 
of  Henry  VIII.  and  William  III.  It  can  alter  the  es- 
tablished religions  of  the  land ;  as  was  done  in  a  variety 
of  instances  in  the  reigns  of  King  Henry  VTII.  and  his 


Chap.  13J     State  of  Constitutional  Law.  3()9 

three  children.  It  cmi  cliange  and  create  afresh  even 
the  constitution  ol'  the  kingdom  and  of  Parliaments 
themselves ;  as  was  done  by  the  act  of  the  Union,  and 
several  statutes  for  triennial  and  septennial  elections. 
It  can  in  short,  do  every  thing  that  is  not  naturally  im- 
possible ;  and  tlierefore  some  have  not  scrupled  to  call 
its  power,  by  a  figure  rather  too  bold,  the  omnipotence 
of  Parliament." 

The  editor  in  a  note  says : 

"By  this  is  meant  that  Parliament  is  potent  above 
all  other  ]jowers  in  the  realm,  and  whatever  it  shall  as- 
sume to  do  no  one  else  may  (juestion.  It  is  not  a  law- 
making power  merely,  but  may  execute  laws  through  its 
own  agencies,  and  at  its  discretion  may  dispose  of 
rights,  and  even  take  away  life,  as  has  often  been  done 
by  means  of  bills  of  attainder." 

The  Supreme  Court  of  the  United  States,  in  Kil- 
bourn  v.  Thompson,  103  U.  S.  168,  et  seq.  (A.  D.  1880), 
discuss  the  powers  of  Parliament  under  the  English 
Constitution  and  the  powers  of  legislatures  under 
American  Constitutions.    Say  the  court,  page  170 : 

**This  is  an  action  for  false  imprisonment  brought 
by  Hallett  Kilbourn  against  John  C.  Thompson,  Mi- 
chael C.  Kerr,  John  M.  Glover,  Jeptha  D.  New,  Bur- 
well  P.  Lewis  and  A.  Herr  Smith.  The  declaration 
charges  that  the  defendants,  with  force  and  anns,  took 
the  plaintiff  from  his  house  and  without  any  reasonable 
or  probable  cause,  and  against  his  will  confined  him  in 
the  comanon  jail  of  the  District  of  Columbia  for  the 
period  of  forty-five  days." 

Defendant  Thompson  made  a  s]~)ecial  plea  (set  out 
at  length)  that  he  was  sergeant  at  anns  of  the  House  of 
Representatives  and  confined  Kilbourn  in  jail  under 
the  orders  and  judgment  of  the  House  of  Representa- 
tives for  contempt  of  the  House.  The  plea  of  defend- 
ant Thompson  set  out  in  detail  and  with  minuteness 


310  Law  of  Loa\L  Taxation.  [Chap.  13 

the  facts  and  circumstances  leading  up  to  the  impris- 
onment of  Mr.  Kilbouru.  He  was  a  witness  before  a 
committee  of  the  House  and  refused  to  answer  certain 
questions.  Tlie  United  States  was  a  creditor  of  Jay 
Cooke  &  Company  who  went  into  bankruptcy  and  cer- 
tain settlements  had  been  made.  Fraud  was  charged 
and  the  committee  were  to  inquire  into  the  matter  and 
report  to  the  House.  The  committee  summoned  Mr. 
Kilboum  as  a  witness  to  bring  before  the  committee 
certain  books  and  accounts  and  papers.  Mr.  Kilbourn 
refused  to  bring  the  books,  accounts  and  papers  and  re- 
fused to  answer  certain  questions  and  he  was  com- 
mitted for  contempt.  The  court,  after  referring  to 
the  powers  of  the  House  of  Commons  say,  page  183 : 

''It  is  important,  however,  to  understand  on  what 
principle  this  power  of  the  House  of  Commons  rests, 
that  we  may  see  whether  it  is  applicable  to  the  two 
houses  of  Congress,  and  if  it  be,  whether  there  are  lim- 
itations to  its  exercise. 

"While  there  is,  in  the  adjudged  cases  in  the  En- 
glish courts,  little  agreement  of  opinion  as  to  the  ex- 
tent of  this  power  and  the  liability  of  its  exercise  to  be 
inquired  into  by  the  courts,  there  is  no  difference  of 
opinion  as  to  its  origin.  This  goes  back  to  the  period 
when  the  bishops,  the  lords,  and  knights  and  burgesses 
met  in  one  body,  and  were,  when  so  assembled,  called 
the  High  Court  of  Parlioment.  They  were  not  only 
called  so,  but  the  assembled  Parliament  exercised  the 
highest  functions  of  a  court  of  judicature,  represent- 
ing in  that  respect  the  judicial  authority  of  the  king  in 
his  court  of  Parliament.  WTiile  this  body  enacted  laws, 
it  also  rendered  judgments  in  matters  of  private  nght, 
which,  when  approved  by  the  king,  were  recognized  as 
valid.  Upon  the  separation  of  the  Lords  and  Commons 
into  two  sex>arate  bodies,  holding  their  sessions  in  dif- 
ferent chambers,  and  hence  called  the  House  of  Lords 


Chap.  13]      State  of  Constitutional  Law.  311 

and  tlie  House  of  Coimnoiis,  the  judicial  function  of 
reviewing  by  appeal  the  decisions  of  the  courts  of 
Westminster  Hall  passed  to  the  House  of  Lords,  where 
it  has  been  exercised  without  dis])ute  ever  since.  To 
the  Conunons  was  left  the  i)Ower  of  impeachment,  and, 
perhaps,  others  of  a  judicial  character,  and  jointly  they 
exercised,  until  a  very  recent  period,  the  power  of  pass- 
ing bills  of  attainder  for  treason  and  other  high  crimes 
which  are  in  their  nature  punishment  for  crime  de- 
clared judicially  by  the  High  Court  of  Parliament  of 
the  Kingdom  of  England." 

In  City  of  Kansas  to  use  of  Coates  v.  Ridenour, 
84  Mo.  253,  at  261  (Oct.  term,  1884),  the  Supreme 
Court  of  Missouri  said : 

''When  sued  on  a  special  tax-bill,  he  (the  property- 
owner)  may  attack  the  contract,  set  off  against  his  lia- 
bility damages  from  its  negligent  or  imperfect  per- 
formance or  entirely  defeat  a  recovery  by  overthrow- 
ing the  theory  of  benefits  conferred.  [Creamer  v. 
Bates,  49  Mo.' 523;  Corriga)i  v.  Gage,  68  Mo.  541;  Ral- 
pin  V.  Campbell,  71  Mo.  493.]" 

Evidently  the  court  had  in  mind  the  constitutional 
doctrines  so  often  announced  that  even  if  there  was  a 
general  benefit  the  tax  was  unconstitutional.  ''When 
sued  on  a  special  tax-hill,"  how  is  the  property-owner 
to  overthrow  the  theory  of  benefits ! 

In  Moherly  v.  Hogan,  131  Mo.  19,  at  22,  bottom  of 
page,  the  Supreme  Court  of  Missouri  say: 

"At  the  trial  the  court  refused  to  allow  defend- 
ant's offer  of  testimony  to  show  that  the  lot  was  not 
benefited,  but  that  its  value  was  destroyed  thereby." 

"The  trial  court  committed  no  error  in  excluding 
defendant's  evidence  offered."   \F.  24,  top,  same  case.] 

It  is  not  competent  to  show  in  evidence  that  "the 
lot  was  not  benefited."  It  is  not  competent  to  show 
that ' ' its  value  was  destroved  thereby. ' '    This  lot  could 


312  Law  of  Local,  Taxation.  [Chap.  13 

not  be  taken  for  public  use  without  just  compensation. 
It  could  not  be  damaged  for  public  use  without  just 
compensation,  but  in  a  case  where  "the  lot  was  not  ben- 
efited, "  in  a  case  where  ' '  its  value  was  destroj^ed, ' '  a 
special  tax  to  pay  the  cost  of  doing  that  which  was  not 
a  benefit  to  the  lot ;  a  special  tax  to  pay  the  cost  of  do- 
ing that  which  destroyed  its  value,  is  a  valid  tax.  The 
lot  cannot  be  damaged  for  public  use  without  just  com- 
pensation, but  its  value  may  be  destroyed  and  the  lot 
may  be  made  liable  for  the  cost  of  such  destruction, 
either  total  or  partial. 

In  Keith  v.  Bingham,  100  Mo.  300,  the  Supreme 
Court  of  Missouri  affirmed  a  judgment  enforcing  a  tax- 
bill  for  grading  a  street  in  Kansas  City,  which  gi^ading 
damaged  the  lot.  No  damages  were  ever  paid  or  of- 
fered to  any  one.  If  the  city  may  make  a  contract  to 
damage  private  projDerty  for  public  use  without  pay- 
ing for  it,  why  may  not  the  city  make  a  contract  to 
take  it  without  paying  for  it?  In  all  cases  the  contrac- 
tor is  not  the  landowner ;  the  landowner  makes  no  con- 
tract. 

''It  may  be  observed,  in  the  first  place,  that  there  is 
no  attempt  here  to  exercise  the  power  of  eminent  do- 
main for  it  was  not  proposed  to  condemn  the  defend- 
ant's property  to  public  use,  and  it  is  unnecessary  to 
discuss  the  character,  extent  or  limitation  of  that  pow- 
er." [Inhahitants  of  Palmyra  v.  Morton,  25  Mo.  593, 
loc.  cit.  595.] 

The  Constitution  prohibits  a  name  and  not  a  thing. 
"Private  property  shall  not  be  taken  or  damaged  for 
public  use  without  just  compensation,"  now  reads 
thus:  "Private  property  shall  not  be  condemned  for 
public  use  or  damaged  by  condenmation  for  public  use 
without  just  compensation." 

The  present  state  of  constitutional  law  in  refer- 
ence to  what  is  called  local  taxation  is  this :    The  power 


Chap.  13]     State  of  Constitutional  h\w.  313 

of  the  State  to  tax  was  unlimited.  The  Constitution  of 
1875  made  no  limit  or  restriction  on  local  taxation. 
Prior  to  1875  in  Missouri,  the  legislative  power  was 
subject  to  one  limitation  on  the  tax  power,  and  one 
alone— "property  nmst  be  taxed  according  to  value," 
but  the  tax  might  have  been  one  hundred  per  cent  of 
the  value.  Now  the  legislative  power  may  authorize 
the  construction  of  roads  aaid  streets,  and  may  author- 
ize them  to  be  paved,  graded  and  improved,  and  the 
cost  thereof  to  be  assessed  to  abutting  land,  even  if  the 
work  done  be  a  damage  prohibited  by  the  Constitution. 

The  legislative  power  in  the  State  may  tax  occupa- 
tions to  the  etxent  of  one  hundred  per  cent  of  the 
amount  received  by  the  employee.  Taxation  must  be 
uniform  throughout  the  territorial  limits  of  the  author- 
ity levying  the  tax,  but  this  does  not  apply  to  local 
taxes.  But  if  a  lot  is  taxed  according  to  frontage,  then 
"each  front  foot  thereof  is  assessed  alike"  (80  Mo. 
391).  A  local  tax  that  takes  every  thing  owned  by  the 
taxpayer  is  certainly  not  lacking  in  unifoimity.  And 
if  every  person  having  an  occupation  were  taxed  one 
hundred  per  cent  of  his  receipts,  tlien  every  dollar  he 
receives  is  taxed  just  like  every  other  dollar  he  re- 
ceives, and  just  like  eveiy  dollar  any  other  employee 
may  receive. 

The  tax  takes  one  hundred  cents  of  each  and  ever>' 
dollar  he  has.  The  local  tax  ought  to  be  less  than  one 
hundred  per  cent.  The  legislative  power  ought  not  to 
be  authorized  to  take  the  whole  value  of  the  property 
in  the  way  of  a  local  tax.  A  limitation  to  that  effect 
should  be  put  on  tliat  power. 

It  is  HOW  the  constitutional  law  of  the  United  States 
that  local  taxes  may  he  levied  on  abutting  property  to 
pay  for  improving  roads  a/nd  streets  to  the  extent  of 
one  hundred  per  cent  of  the  value  of  the  abutting  land, 
although  the  abutting  land  may  be  damaged  by  the  im- 


314  Law  of  Local  Taxation.  [Chap.  13 

provemenf  for  which  the  tax  may  be  levied.    The  courts 
can  afford  no  remedy. 

Wliat  are  the  reasons  which  prevent  judicial  inter- 
ference will  now  be  inquired  into. 


CHAPTER  14. 

REASONS  WHICH   PREVENT   JUDICIAL  INTERFERENCE. 

By  the  Constitution  of  the  United  States,  article 
1,  section  10,  no  State  shall  pass  any  law  impairing  the 
obligation  of  contracts.  Nearly  every  state  constitution 
contains  the  same  or  like  provision.  In  the  sense  of 
the  prohibition  used  in  the  Constitution  of  the  United 
States  it  includes  all  laws.  The  ordinances  of  city 
councils,  statutes  enacted  ))y  the  legislative  power  and 
state  constitutions  are  all  included.  The  prohibition  is 
absolute  and  complete  as  to  the  whole  State,  and  all 
the  agencies  through  which  the  State  may  act. 

The  highest  .judicial  tribunal  of  each  state  con- 
strues the  Constitution  and  statutes  of  the  State  and 
the  interpretation  so  placed  on  the  Constitution  and 
statutes  becomes  a  part  thereof  the  same  as  if  copied 
into  the  statutes  and  Constitution. 

In  Christie  v.  Pridgen,  4  Wall.  196  (A.  D.  1866),  a 
statute  of  Mexico  was  involved.  The  statute  was  en- 
acted before  Texas  was  admitted  as  a  State  and  the 
Supreme  Court  of  Texas  had  construed  this  statute  of 
Mexico.    Say  the  court,  page  203 : 

"The  law  of  1824,  though  general  to  the  Eepublic 
of  Mexico,  was,  so  far  as  it  affected  lands  within  the 
limits  of  Texas,  after  the  independence  of  that  coun- 
try, a  local  law  of  the  new  State— so  much  so  as  if  it 
had  originated  in  her  legislation.  It  had  at  the  time  no 
operation  in  any  portion  of  what  then  constituted  the 
United  States.  The  interi)retation,  therefore,  placed 
upon  it  by  the  highest  court  of  that  State  must,  aceord- 

(315) 


316  Law  of  Local  Taxation.  [Chap.  14 

ing  to  the  established  principles  of  this  court,  be  ax?- 
cepted  as  the  true  interpretation  so  far  as  it  applies  to 
titles  to  lands  in  that  State,  whatever  may  be  our  opin- 
ion of  is  original  soundness.     Nor  does  it  matter  that 
in  the  courts  of  other  States,  carved  out  of  territory 
since  acquired  from  Mexico,  a  different  interpretation 
may  have  been  adopted.    If  such  be  the  case,  the  courts 
of  the  United  States  will,  in  conformity  with  the  same 
principles,  follow  the  different  rulings  so  far  as  it  af- 
fects titles  in  those  States.     The  interpretation  ivithm 
the  jurisdiction  of  one  State  becomes  a  part  of  the  law 
of  that  State  as  much  so  as  if  incorporated  into  the  body 
of  it  by  the  Legislature.    If,  therefore,  different  inter- 
pretations are  given  in  different  states  to  a  similar  lo- 
cal law,  that  law  in  effect  becomes  by  the  interpreta- 
tions, so  far  as  it  is  a  rule  for  our  action,  a  different  law 
in  one  State  from  what  it  is  in  the  other.     'That  the 
statute  laws  of  the  states'  says  Mr.  Justice  Johnson,  in 
delivering  the  opinion  of  this  court  in  Shelby  v.  Guy, 
(11  AYheaton  367),  'must  furnish  the  rules  of  decision 
of  this  court,  so  far  as  they  comport  with  the  Constitu- 
tion of  the  United  States,  in  all  cases  arising  within  the 
respective  states, '  is  a  position  that  no  one  doubts.  Nor 
is  it  questionable  that  a  fixed  and  received  construction 
of  their  respective  statute  laws,  in  their  own  courts, 
makes,  in  fact  a  part  of  the  statute  law  of  the  country, 
however  we  may  doubt  the  propriety  of  that  construc- 
tion.   It  is  obvious  that  this  admission  may  at  times  in- 
volve us  in  seeming  inconsistencies— as  where   states 
have  adopted  the  same  statute,  and  their  courts  differ 
in  the  construction.     Yet  that  course  is  necessarily  in- 
dicated by  the  duty  imposed  upon  us,  to  administer,  as 
between  certain  individuals,  the  la^^s  of  the  respective 
states  according  to  the  best  lights  we  possess  of  what 
those  laws  are." 

Illinois  and  Missouri  have  a  voluntary  assignment 


Chap.  14]  Why  No  Judicial  Interference.  317 

law  couched  in  ahiiost  the  same  language.  The  Su- 
preme Court  of  Missouri  jmt  a  certain  construction  on 
her  assignment  law.  Illinois  put  a  different  construc- 
tion on  her  law.  The  Missouri  statute  is  a  different 
statute  from  the  Illinois  statute  solely  from  the  differ- 
ent interpretations  put  by  the  Supreme  Court  of  each 
State  on  its  own  statute.  [Chicago  Union  Bank  v.  Kam- 
sas  City  Bank,  136  U.  S.  223,  at  235;  White  v.  Cotz- 
hausen,  129  U.  S.  329.] 

The  same  principle  will  apply  to  constitutions.  Tlie 
interpretation  put  on  the  Constitution  of  a  State  by  its 
highest  judicial  tribunal  becomes  a  part  of  that  Consti- 
tution the  same  as  if  copied  into  it. 

The  principle  is  well  illustrated  in  Township  of 
Pine  Grove  v.  Talcott,  19  Wall.  666  (decided  in  the  Su- 
preme Court  of  the  United  States  in  October,  1873,  un- 
der act  of  the  Legislature  of  :\richigan,  approved  March 
22,  1869,  under  the  Constitution  of  the  State  adopted 
in  1850).  The  Supreme  Court  of  Michigan  put  a  con- 
struction on  her  Constitution  adopted  in  1850.  The  Su- 
preme Court  of  the  United  States  in  this  case  overruled 
that  construction,  holding  that  the  Supreme  Court  of 
Michigan  had  erred  in  construing  her  state  Constitu- 
tion. The  Constitution  of  the  State  of  Michigan, 
adopted  in  1850,  contained  this  provision  (art.  14,  sec. 
6) :  ''The  credit  of  the  State  shall  not  be  granted  to 
or  in  aid  of  any  x)erson,  association  or  coi-poration. " 

The  act  of  the  Legislature  of  Michigan  provided : 
"That  it  shall  be  lawful  for  any  township  or  city  to 
pledge  its  aid  to  any  railroad  company  now  chartered, 
organized,  under  and  by  virtue  of  the  laws  of  the  State 
of  Michigan,  in  the  construction  of  its  road  by  loan  or 
donation  with  or  without  conditions,"  etc.  The  aid 
was  not  to  exceed  ten  ]ier  cent  of  the  assessed  valuation 
of  the  city  or  township  and  was  to  be  authorized  by 
popular  vote.    The  Supreme  Court  of  Michigan  say : 


318  Law  of  Local  Taxation.  [Chap.  14 

"All  these  provisions  were  incorporated  by  the 
people  in  the  Constitution  as  precautions  against  inju- 
dicious action  by  themselves,  if  in  another  time  of  infla- 
tion and  excitement  they  should  be  tempted  to  incur  the 
like  burdensome  taxation  in  order  to  accomplish  public 
improvements,  in  cases  where  they  were  not  content  to 
wait  the  result  of  private  enterprise.  The  people  meant 
to  erect  such  effectual  barriers  that  if  the  temptation 
should  return,  the  means  of  inflicting  like  injuiy  upon 
credit,  reputation,  and  prosperity  of  the  State  should 
not  be  within  the  reach  of  the  authorities.  They  be- 
lieved these  clauses  of  the  Constitution  accomplished 
this  purpose  perfectly ;  and  none  of  its  provisions  had 
more  influence  in  recommending  that  instrument  to  the 
hearty  good  will  of  the  people.  In  process  of  time,  how- 
ever, a  majority  in  the  Legislature  were  found  willing, 
against  the  solemn  warning  of  the  executive,  to  resort 
again  to  the  power  of  taxation  in  aid  of  internal  im- 
provement. It  was  discovered  that  though  the  State 
was  expressly  inhibited  from  giving  such  aid  in  any 
forai,  except  in  the  disposition  of  grants  made  to  it,  the 
subdivisions  of  which  the  State  was  comj^osed  were  not 
under  the  like  ban.  Decisions  in  other  States  were 
found  which  were  supposed  to  sanction  the  doctrine 
that  under  such  circumstances,  the  State  might  do  in- 
directly, through  its  subdi\Tisions,  what  directly  it  was 
forbidden  to  do.  Thus  a  way  was  opened  by  which  the 
whole  purpose  of  the  constitutional  provisions  quoted 
might  be  defeated.  The  State  could  not  aid  a  private 
corporation  with  its  credit,  but  it  might  require  each 
of  its  townships,  cities  and  villages  to  do  so.  The  State 
could  not  load  down  its  people  with  taxes  for  the  con- 
struction of  a  public  improvement,  but  it  might  compel 
the  municipal  authorities,  which  were  its  mere  crea- 
tures and  which  held  their  whole  authority  and  their 
whole  life  at  its  will,  to  enforce  such  taxes,  one  by  one, 
until  the  whole  people  were  bent  to  the  burden." 


Chap.  14]  Why  No  Judicial  Interference.  319 

"Now,  whatever  might  be  the  just  and  proper  con- 
struction of  similar  provisions  in  the  constitution  ol" 
states  whose  history  has  not  been  the  same  with  our 
own,  the  majority  of  this  court  thought,  when  the  pre- 
vious case  was  before  us,  and  they  still  think,  that  these 
provisions  in  our  Constitution  do  preclude  the  State 
from  loaning  the  public  credit  to  private  corporations, 
and  from  imposing  taxation  upon  its  citizens,  or  any 
portion  thereof,  in  aid  of  the  constniction  of  railroads. 
So  the  people  supposed  when  the  Constitution  was 
adopted.  Constitutions  do  not  change  with  the  varying 
tides  of  public  opinion  and  desire;  the  will  of  the  peo- 
ple therein  recorded  is  the  same  inflexible  law  until 
changed  by  their  own  deliberate  action;  and  it  cannot 
be  peraiissible  to  the  courts  that,  in  order  to  aid  eva- 
sions and  circumventions,  they  shall  subject  those  in- 
stiiiments,  which  in  the  main  only  undertake  to  lay 
down  broad  general  principles,  to  a  literal  and  technic- 
al construction  as  if  they  were  great  public  enemies 
standing  in  the  nay  of  progress^  and  the  duty  of  every 
good  citizen  was  to  get  around  their  provisions  ivhen- 
ever  practicable,  and  give  them  a  damaging  thrust 
whenever  convenient.  They  must  construe  them  as  the 
people  did  in  their  adoption,  if  the  means  of  arri\dng 
at  that  constniction  are  within  their  power.  In  these 
cases  we  thought  we  could  arrive  at  it  from  the  public 
history  of  the  times."  [Bay  City  v.  State  Treasurer, 
23  Mich.  499,  et  seq.,  and  The  People  v.  Salem,  20 
Mich.  452.] 

This  case  in  the  Supreme  Court  of  Michigan  (20 
Mich,  supra)  was  heard  in  the  Supreme  Court  of  Mich- 
igan on  April  7,  8,  12,  13,  14,  15  and  May  24,  25,  1870, 
and  decided  May  26,  1870.  The  printed  report  occu- 
pies seventy-two  pages.  The  special  act  of  the  Legis- 
lature was  passed  in  1864.  The  work  was  done  on  or 
about  Julv  1,  1868.    The  suit  was  begun  in  Julv  1868, 


320     •  Law  of  Local  Taxation.  [Chap.  14 

This  is  not  stated  in  terms  in  the  reported  ease,  but  the 
work  was  done  at  that  time  which,  by  the  contract,  en- 
titled the  railroad  to  the  delivery  of  the  bonds,  and  rail- 
roads are  never  gnilty  of  the  least  negligence  in  de- 
manding municipal  bonds.  The  case  of  the  People  v. 
Salem  was  mandamus  to  compel  the  city  to  issue  and 
deliver  the  bonds.  Bat/  City  v.  State  Treasurer,  23 
Mich.,  supra,  was  mandamus  to  compel  the  state  treas- 
urer to  return  bonds  to  Bay  City,  issued  under  act  of 
March  22,  1869.  The  decision  in  the  Supreme  Court 
of  Michigan  was  rendered  at  its  October  term  1871. 

The  question  in  Totvnship  of  Pine  Grove  v.  Tal- 
ciitt,  19  Wall.  666,  was  one  of  power.  Section  6  of  ar- 
ticle 14  of  the  Constitution  of  Michigan  said:  "The 
credit  of  the  State  shall  not  be  granted  to  or  in  aid  of 
any  person,  association  or  corporation."  This  was 
thought  to  be  a  restriction  on  the  whole  State,  its  Leg- 
islature, its  governor  and  its  courts.  And  the  whole  in- 
cluded all  the  parts  and  all  parts  of  the  State  were 
limited  and  restrained  by  this  provision.  These  decis- 
ions became  a  part  of  the  Constitution  of  Michigan 
the  same  as  if  copied  into  it. 

By  the  act  of  the  Legislature  of  Michigan  of 
March  22,  1869,  it  became  lawful  "For  any  township 
or  city  to  pledge  its  aid  to  any  railroad  conipany,  etc., 
to  an  amount  not  to  exceed  ten  per  cent  of  the  assessed 
value  of  the  property  to  be  taxed. ' ' 

In  1870  and  1871  the  Supreme  Court  of  Michigan 
decided  that  the  state  Constitution  prohibited  what  was 
attempted  under  the  act  of  the  Legislature  of  Michigan 
of  March  22,  1869,  only  one  or  two  years  before.  The 
Supreme  Court  of  the  United  States  held  that  the  Con- 
stitution of  Michigan  authorized  what  the  Supreme 
Court  of  Michigan  held  that  it  prohibited.  In  Town- 
ship of  Pine  Grove  v.  Talcutt,  19  Wall.  666,  at  674,  the 
court  say : 


Chap.  14]  Why  No  Judicial  Interference.  321 

**In  1863  began  a  series  of  s))ecial  legislative  acts 
authorizing  the  niunieipal  sulxlivisions  of  the  State 
named  therein  to  give  their  aid  respectively  to  the  ex- 
tent and  in  the  manner  prescribed.  Between  that  time 
and  the  year  1869  thirty  such  statutes  were  enacted. 
In  the  latter  year  the  general  law  was  passed  under 
which  the  bonds  in  question  were  issued.  This  sum- 
mary shows  the  understanding  in  the  Legislature  and 
out  of  it,  in  the  State,  that  there  was  no  constitutional 
prohibition  against  sueh  legislation.  It  does  not  ap- 
pear that  its  validity  was  ever  in  any  instance  judic- 
ially denied  until  the  year  1870." 

In  the  Constitution  of  the  United  States,  article  1, 
section  10,  we  find  this  restri«'tion:  "No  State  shall  pass 
any  law  impairing  the  obligation  of  contracts."  The 
Toumship  of  Pine  Grove  v.  Talcutt  was  decided  in  tbe 
United  States  Supreme  Court  in  1873,  eighty-four 
years  after  the  adoption  of  this  provision  in  the  Con- 
stitution of  the  United  States.    At  page  677  the  court 

"It  does  not  belong  to  courts  to  interpolate  consti- 
tutional restnctions.  Our  duty  is  to  apply  the  law,  not 
to  make  it.  All  power  may  be  abused  where  no  safe- 
guards are  provided.  The  remedy  in  such  cases  lies 
with  the  people,  and  not  with  the  judiciary." 

Now  what  remedy  have  the  people!  Here  certain 
officers  issued  bonds.  Judgment  is  rendered  against 
the  townshi]!.  The  contention  was,  the  officers  acted 
without  authority.  This  is  quite  different  from  an 
abuse  of  authority.  Officers  cannot  abuse  an  authority 
they  do  not  have.  The  case  is  one  of  a  want  of  author- 
ity—a failure  to  give  nuthoiity  or  the  exercise  of  an 
authority  positively  prohibited.  Doing  a  thing  prohib- 
ited is  not  an  abuse  of  the  prohibited  power.  It  would 
not  be  an  abuse  of  a    non-existent   power,   much   less 

21 


322  Law  of  Locai.  Taxation.  [Chap.  14 

would  it  be  an  abuse  of  a  prohibited  power.  Here  the 
State  prohibited  the  thing  done.  The  state  Constitu- 
tion was  so  interpreted.  What  safeguard  is  it  possible 
for  the  people  of  Michigan  to  make  to  remedy  the  thing 
done  without  authority! 

Constitution  of  Michigan,  article  14,  section  6, 
says:  ''The  credit  of  the  State  shall  not  be  granted 
to  or  in  aid  of  any  person,  association  or  corporation." 

Constitution  of  Michigan,  article  15  section  13, 
says:  "The  Legislature  shall  provide  for  the  incorpo- 
ration and  organization  of  cities  and  villages,  and  shall 
restrict  their  powers  of  taxation,  borrowing  money, 
contracting  debts,  and  loaning  their  credit. ' '  Wliy  were 
''cities"  and  "villages"  named  and  "townships"  left 
out  ?  Why  were  towns  left  out  I  ' '  Cities ' '  and  ' '  vil- 
lages ' '  have  the  powers  of  taxation,  borrowing  mioney, 
contracting  debts  and  loaning  their  credit;  otherwise, 
how  can  the  Legislature  restrict  these  powers  or  any 
other  powers  that  do  not  exist. 

"The  language  of  this  clause  clearly  implies  that 
the  powers  to  be  restricted  may  be  exercised  and  what 
is  implied  is  as  effectual  as  what  is  expressed."  [S.  C, 

19  Wall.  1.  c.  676.] 

"What  is  implied  in  a  statute,  pleading,  contract 
or  will  is  as  much  a  part  of  it  as  what  is  expressed.     [2 
Paines  Rep.  251,  Koning    v.  Bayard;    3  Wend.   25H, 
Haiglit  v.  Holley;  10  Wend.  218,  Bogers  v.  Neeland; 

20  Wend.  447,  Fox  v.  Phelps;  Com.  Dig.,  tit.  "Devise," 
n.  12.]" 

According  to  this  reasoning,  cities  and  villages 
have  the  following  powers : 

1.  Power  of  taxation ; 

2.  Power  of  borrowing  money ; 

3.  Power  of  contracting  debts ; 

4.  Power  of  loaning  their  credit. 

These  powers  are  granted  by  the  Constitution  of 


Chap.  14]  Why  No  Judicial  Interference.  323 

Michigan  and  not  by  her  Leg-islature.  The  argument 
is  tliat  the  Constitution  of  ^licliigan  gives  her  cities 
and  villages  the  power  of  taxation  and  the  other  pow- 
ers named.  The  Constitution  of  Michigan  gives  her 
cities  power  to  tax  property  one  hundred  i)er  cent,  to 
tax  occupations  one  hundred  per  cent,  unless  the  Legis- 
lature restrict  them.  These  cities  can  borrow  all  the 
coined  money  of  the  world  unless  the  Legislature  re- 
strict them.  Any  one  city  in  ]\richigan  may  loan  its 
credit  to  the  extent  of  ten  times  the  national  debt  in- 
curred in  the  war  between  the  states  in  1861-5,  unless 
the  Legislature  restrict  it.  (Notwithstanding  this  lan- 
guage in  the  Constitution,  the  Supreme  Court  of  Mich- 
igan held  that  there  was  no  power  in  the  Legislature  to 
authorize  the  issue  of  bonds.) 

In  Tonnship  of  Pine  Grove  v.  Talcutt,  19  Wall,  at 
677,  the  court  say : 

"The  question  before  us  belongs  to  the  domain  of 
general  jurisprudence.  In  tliis  class  of  cases  this  court 
is  not  bound  by  the  judgment  of  the  courts  of  the  States 
where  the  cases  arise.  It  must  hear  and  determine  for 
itself.  Here  conmiercial  securities  are  involved.  When 
the  bonds  were  issued,  there  had  been  no  authoritative 
intimation  from  any  quarter  that  such  statutes  were  in- 
valid. The  Legislature  affinned  their  validity  in  every 
act  by  an  implication  equivalent  in  effect  to  an  express 
declaration.  And  during  the  period  covered  by  enact- 
ment, neither  of  the  other  dei^artments  of  the  govern- 
ment of  the  State  lifted  its  voice  against  them.  The  ac- 
quiescence was  universal. 

**The  general  understanding  of  the  legal  profes- 
sion throughout  the  country  is  believed  to  have  been 
that  they  were  valid.  The  national  Constitution  for- 
bids the  States  to  pass  laws  impairing  the  obligation 
of  contracts.  In  cases  properly  brought  before  us,  that 
end  can  be  accomplished  unwarrantably,  no  more  by 
judicial  decisions  than  by  legislation.    Were  we  to  yield 


324  Law  of  Local  Taxation.  [Chap.  14 

in  cases  like  this  to  the  authority  of  decisions  of  the 
courts  of  the  respective  States  we  should  abdicate  the 
perfonnance  of  one  of  the  most  important  duties  with 
which  this  tribunal  is  charged  and  disappoint  the  wise 
and  salutaiy  policy  of  the  framers  of  the  Constitution 
in  providing  for  the  creation  of  an  independent  Federal 
judiciary.  The  exercise  of  our  appellate  jurisdiction 
would  be  but  a  solemn  mockery. ' ' 

The  decision  of  the  highest  judicial  tribunal  in  the 
State  on  the  Constitution  or  statute  law  of  the  State 
becomes  a  part  of  such  statute  law  or  Constitution  the 
same  as  if  written  into  the  Constitution  or  statute  law. 
This  was  recognized  in  Missouri  as  the  general  inile  of 
law  in  1835,  in  the  case  of  the  State  of  Missouri  at  the 
relation  of  Gentry  et  ux  v.  Frey  et  al.,  in  4  Mo.  120,  et 
seq. 

The  relator,  Gentry,  sued  on  the  bond  made  by  de- 
fendants as  principal  and  sureties  on  the  guardian's 
bond  as  the  guardian  of  Elvira  Frey.  Gentry  stated 
that  Elvira  Frey  had  certain  property  and  money  in 
the  hands  and  under  the  control  of  her  guardian,  Frey. 
After  the  guardian  had  had  control  of  this  property, 
Gentry  married  the  ward  and  the  property  thus  became 
his  by  the  marriage,  and  the  guardian  refused  to  de- 
liver or  pay  the  money  to  Gentry,  the  husband. 

The  defendants  set  up  a  denial  of  the  right  of  Gen- 
try to  the  money  and  property  of  his  wife  in  the  hands 
of  the  guardian,  for  the  reason  that  the  bonds  of  matri- 
mony between  Gentry  and  wife  had  been  dissolved  by 
the  Legislature  of  Missouri.  Plaintiff  demurred  to  this 
plea.  The  reader  curious  enough  to  read  this  divorce 
act  will  find  it  in  Missouii  Session  Acts  1832-3,  ]>age 
131.  There  and  in  contiguous  pages  the  reader  will 
find  47  divorces  granted  by  the  Missouri  Legislature 
on  three  days  in  February  1833  (and  not  very  good 
days  for  divorces  either).     One  of  these  acts  grants  a 


CLap.  14]  Why  No  Judicial  Interference.  325 

divorce,  giving  as  a  reason  for  it  that  under  existing 
law  the  i)arties  were  not  entitled  to  such  divorce.  It 
will  be  found  on  page  133,  chapter  101. 

In  these  cases  the  reader  will  notice  that  the  Mis- 
souri Legislature  claimed  the  omnipotence  of  the  En- 
glish Parliament,  indejjendent  of  and  against  the  Con- 
stitution of  Missouri.  These  chapters  show  something 
of  the  ideas  and  notions  at  that  time,  of  the  Legislature 
and  its  powers.  The  Legislature  does  all  sorts  of 
things.  In  chapter  97,  page  129,  the  preamhle  recites 
that  the  wife  abandoned  the  husband  on  their  way  up 
the  Mississippi,  at  St.  Louis.  In  chapter  98  the  husband 
maltreats  the  wife  and  child,  "and  whereas  the  law  of 
this  State  giving  to  the  circuit  court  cognizance  over 
such  cases,  does  not  cover  the  ease  of  the  said  Sarah, ' ' 
etc.,  etc.,  **and  consequently  she  has  no  redress  but  by 
and  through  the  General  Assembly,"  etc.,  therefore  the 
Legislature  gives  them  the  divorce. 

In  chapter  101,  the  husband  absents  himself  with- 
out cause,  and  the  wife  ''commenced  a  suit  for  a  di- 
vorce in  the  Third  judicial  circuit  in  this  State  and  the 
judge  of  said  circuit  court  dismissed  said  Mary  Ann's 
petition  on  account  of  a  technicality,  and,  whereas  it  is 
represented  that  the  said  Maiy  Ann  is  extremely  poor 
and  is  but  little  able  to  pay  the  expenses  of  a  second 
suit,  for  remedy  whereof  and  because  the  General 
Assembly  believes  she  is  entitled  to  divorce  from  tlie 
bonds  of  matrimony  by  her  contracted  with  said 
David,"  etc.,  therefore  the  Legislature  grants  the  di- 
vorce. 

Here  our  Missouri  Parliament,  ''The  High  Court 
of  Parliament,"  in  effect  grants  a  writ  of  error  to  the 
circuit  court,  our  House  of  Commons,  joining  our  House 
of  Lords,  but  the  governor,  our  king,  dissented,  but  our 
"High  Court  of  Parliam-ent"  nevertheless  granted  the 
divorce. 


326  Law  of  Local  Taxation.  [Chap.  14 

The  preamble  to  chapter  102  finds  ''that  said  Eliza 
has  always  maiutained  an  excellent  reputation  and 
given  no  cause  for  desertion  by  her  husband;  and, 
whereas,  said  Eliza  has  attempted  to  obtain  her  divorce 
at  law  and  by  the  common  course  and  practice  of  the 
court  would  have  been  entitled  to  her  divorce  in  No- 
vember last  (i.  e.,  1832)  had  not  continuance  been 
given  by  the  negligence  of  her  counsel  or  the  fault  of 
the  court,  therefore  the  divorce  is  granted  by  the  Leg- 
islature, also  the  sole  custody  of  the  child  by  said  hus- 
band. ' ' 

By  chapter  105,  Solomon  and  Susan  were  married 
in  1827  and  in  1828  separated,  then  again  came  back 
and  again  separated ;  the  last  separation  was  under  ar- 
ticles of  separation  which  the  husband  supposed  was 
a  divorce,  and  on  that  supposition  had  married  Eliza- 
beth, and  at  the  Januaiy  term,  1832,  the  wife  filed  her 
petition  for  a  divorce  thereby  showing  she  desired  to 
be  relieved  from  her  bonds  of  matrimony ;  and  tlie  hus- 
band having  married  Elizabeth,  upon  the  supposition 
that  the  articles  of  separation  were  a  divorce,  there- 
fore the  divorce  is  granted.  The  legislative  act  seems 
to  be  in  the  nature  of  a  specific  execution  in  equity  of 
what  one  party  supposed  was  the  efflect  of  the  articles 
of  separation.  This  was  the  decree  of  our  Missouri 
House  of  Lords,  the  House  of  Commons  assenting 
thereto,  and  the  divorce  was  granted  although  the  king 
dissented.  Our  Missouri  Parliament  divorced  in  this 
way,  our  Henry  VIH.  from  Catherine  of  Aragon. 
Everybody  is  a  sovereign  here  without  any  constitu- 
tional restraints. 

By  chapter  107,  Francis  and  Martha  had  been  mar- 
ried and  each  had  sued  for  divorce,  but  both  petitions 
had  been  dismissed  for  failure  to  give  security  for 
costs;  therefore,  the  Legislature  divorced  them. 

These  are  special  acts  for  individual  cases — a  sort 


Chap.  14]  Why  No  Judicial  Interference. 


32' 


of  retail  divorce;  but  tiie  Legislature  did  a  wholesale 
business  in  cliai)ter  90,  consisting  of  thirty-nine  sec- 
tions, each  section  being  a  divorce  of  a  pair  unhappily 
mated  acwrding  to  the  legislative  determination. 

State  of  Missouri  ex  rel.  Gentnj  et  ux  v.  Frey  et 
id.,  4  Mo.  120,  et  seq.,  was  decided  in  the  Supreme 
Court  of  Missouri  at  its  August  term,  1835,  reported 
in  1837.  Elvira  Frey,  a  minor,  was  owner  of  certain 
property  then  in  guardian's  hands  and  control,  ^^^lile 
yet  a  minor  she  was  married  to  Gentry ;  then  came  the 
legislative  divorce  in  1833.  Gentry,  after  the  legisla- 
tive divorce,  brought  suit  on  the  guardian's  bond 
against  the  guardian  and  sureties  on  the  guardian's 
bond.  The  sureties  set  up  the  legislative  divorce  as  a 
divestiture  of  title  from  Gentry,  the  husband,  to  the 
property  of  the  wife  in  the  guardian's  hands.  To  this 
plea  in  bar  there  was  a  demurrer  founded  on  the  inva- 
lidity of  the  legislative  divorce.  The  Supreme  Court  of 
Missouri  held  the  act  unconstitutional  on  three 
grounds : 

1.  The  act  was  retrospective  in  its  operation. 
[This  would  have  been  no  objection  under  the  English 
Constitution;  it  was  no  objection  under  the  Constitu- 
tion of  the  United  States.] 

2.  It  was  judicial  action  on  the  part  of  the  Legis- 
lature, forbidden  by  article  2  of  the  state  Constitution. 
[The  powers  of  government  shall  be  divided  into  three 
distinct  departments,  each  of  which  shall  be  confided  to 
a  separate  magistracy ;  and  no  person  charged  with  the 
execution  of  ijowers  properly  belonging  to  one  of  these 
departments,  shall  exercise  any  power  properly  be- 
longing to  either  of  the  others,  except  in  the  instances 
hereinafter  expressly  directed  or  permitted.] 

3.  The  legislative  act  impaired  the  obligation  of 
the  contract  (marriage)  between  Gentry  and  wife  by 
which  contract  he  became  entitled  to  her  property. 


328  Law  of  Local  Taxation.  [Chap.  14 

At  page  183  the  court  say : 

"This  contract  must  be  within  the  prohibition,  un- 
less there  is  something  in  the  nature  of  the  subject 
which  would  in  equity  and  in  the  nature  of  the  thing, 
take  it  out  of  the  provision.  In  this  case  no  such  equity 
nor  necessity  has  been  shown,  nor  is  it  believed  that 
any  exist.  If  it  is  constitutionally  true  that  no  law  can 
be  passed  to  impair  the  obligation  of  a  contract  to  pay 
money,  to  build  a  house,  or  dig  a  ditch,  why  ought  it  to 
be  less  true  that  a  law  can  not  be  passed  to  deprive  a 
person,  against  his  consent,  of  the  rights  accruing  to 
him  by  the  contract  of  marriage.  If  A.  promise  to  build 
a  house  for  B.  and  fail  to  do  it,  can  the  Legislature  of 
the  State  say  he  is  not  bound  to  build  the  house  nor  pay 
damages  for  the  failure  ?  If  they  can  not  do  this,  how 
does  it  happen  they  can,  upon  any  principles  known  to 
reason  and  sound  logic,  declare  that  the  wife,  who  was 
B.'s,  shall  no  longer  be  his,  and  that  the  parties  are 
henceforth  discharged  from  all  obligations  towards 
each  other,  to  fulfill  the  duties  by  them  contracted  to 
be  fulfilled.  An  answer  is  attempted  to  be  given  to  this 
proposition  which  I  think  is  no  just  answer.  It  is  this, 
that  marriage  is  a  contract  of  a  character  highly  mu- 
nicipal, and  that  society  cannot  exist  without  a  power 
somewhere  in  a  State  to  divorce  married  persons.  It 
is  agreed  that  marriage  is  highly  municipal  in  its  char- 
acter !  that  is,  the  law  of  the  land  must  declare  who  can 
and  who  can  not  marry;  it  must  define  what  words, 
ceremonies  and  forms  are  requisite  to  form  the  con- 
tract ;  it  must  declare  the  rights  and  duties  of  the  par- 
ties, and  lastly,  it  must  declare  what  shall  be  the  conse- 
quences to  the  parties,  in  case  of  a  failure  to  comply 
with  the  contract.  It  is  also  agreed  that  in  every  well- 
governed  State,  there  should  be  a  power  to  divorce,  or 
rather  to  release  the  injured  party  from  the  other  who 
has  broken  his  contract.    But  to    release   the   injured 


Chap.  14]  Why  No  Judicial  Interfebence.  329 

party  from  farther  performance,  wliere  there  has  been 
a  breach  of  the  agreement  by  the  other,  is  not  in  any 
reasonable  view  of  the  subject,  impairing  the  obliga- 
tion of  the  contract;  but  is  rather  providing  a  remedy 
by  which  some  compensation  is  made  for  the  failure  to 
obey  tlie  obligation  of  the  agreement. 

*'But  again,  this  answer  goes  too  far.  Is  it  not 
e(|ually  true,  that  eveiy  contract  is  also  highly  munic- 
ipal ?  Must  not  the  law  of  the  land  declare  who  can 
make  a  contract  to  dig  a  well,  and  what  rights  the  par- 
ties shall,  respectively,  have  in  case  this  contract  is  ful- 
filled or  broken?  Tn  the  one  case  the  operator  has  a 
right,  when  he  complies  with  his  agreement,  to  have  a 
compensation.  In  the  other,  the  owner  has  the  right 
to  the  use  of  the  well,  and  in  case  of  a  failure  by  either, 
the  other  has  a  right  to  insist  on  a  compensation  for 
the  failure.  Xow,  all  contracts  are  matters  of  munici- 
pal regulation,  and  the  Constitution  certainly  did  in- 
tend to  prevent  the  law-making  power  from  enlarging 
or  lessening  the  terais  and  benefits  the  citizens  might  at 
any  time  secure  to  themselves  by  contracts  which  were 
lawful  at  the  time  they  were  made. 

''In  the  case  before  the  court  I  think  it  has  been 
shown  that  by  this  marriage,  the  wife  contracted  and 
gave  to  the  husband  her  person  and  fortune,  subject  to 
the  action  of  the  law  of  the  land  as  it  then  stood.  It  is 
a  fixed  rule  in  law,  that  the  law  relating  to  a  contract 
is  as  much  a  part  of  the  agreement,  as  if  it  were  ex- 
pressed by  the  parties.  If  this  is  true,  then  the  con- 
tract was  that  the  husband  shall  have  all  the  personal 
property  of  the  wife,  both  in  ]X)ssession  and  in  action, 
subject  to  this  condition,  that,  as  to  that  portion  of  the 
personalty  not  reduced  to  ]iossession  during  cover- 
ture, it  should  go  to  the  personal  representatives  of 
the  wife  or  to  herself  in  case  she  survived  her  husband, 
and  that  as  to  the  real  estate  of  the  wife,  the  husband 


330  Law  of  Local  Taxation.  [Chap.  14 

should  be  tenant  for  life  of  them  in  case  issue  capable 
of  inheriting  to  the  wife,  is  bom  alive.  Are  these  ad- 
vantages and  benefits  not  worth  securing  to  the  citi- 
zens by  constitutional  guarantj%  as  much  as  any  others 
that  relate  to  property f" 

Here  we  have  in  Missouri  more  cases  of  legislative 
divorces  than  Michigan  had  in  reference  to  railroad  aid 
bonds.  The  understanding  in  the  Missouri  Legislature 
and  out  of  it  seems  to  have  been  on  a  parallel  with  that 
of  Michigan  on  railroad  aid  bonds,  and  the  Missouri 
Supreme  Court  seem  to  have  held  that  legislative  di- 
vorces were  proliibited  by  the  Missouri  Constitution 
just  as  the  Michigan  Supreme  Court  held  her  railroad 
aid  bonds  prohibited  by  the  Michigan  Constitution. 
Neither  the  Supreme  Court  of  Michigan  nor  that  of 
Missouri  seem  to  have  been  controlled  by  street  ru- 
mors. The  opinion  in  Missouri  in  the  Legislature  and 
at  the  Bar  and  in  the  community  is  similar  to  that  al- 
leged to  exist  in  Michigan  when  the  bond  cases  were  de- 
cided. 

State  ex  rel.  Gentry  v.  Frey  et  al.,  has  never  been 
overruled  in  Missouri.  As  will  be  seen,  various  at- 
tempts were  made  by  the  Legislature  to  grant  divorces 
in  Missouri. 

Wliile  our  Supreme  Court  in  Missouri  has  never 
overruled  this  case,  the  Legislature  paid  no  attention 
or  at  least  little  attention  to  the  ruling  of  the  court. 
Two  legislative  divorces  were  granted  in  1837  (Session 
Acts  1836-7,  pages  311-2);  one  in  1839  (Session  Acts 
1838-9,  page  214);  two  in  1841  (Session  Acts  1840-1, 
page  176) ;  six  in  1843  (but  these  refer  the  parties  to 
the  courts  to  get  divorces,  specially  in  those  cases 
created  by  legislative  act),  see  Session  Acts  Missouri 
Legislature  1842-3,  pages  203-5;  Session  Acts  1844-5 
pages  83-85.  The  reader  will  here  find  the  Bryson  di- 
vorce on  page  85;  in  Session  Acts  1848-49,  pages  451- 


Chap.  14]  Why  No  Judiciaj.  Interference.  331 

464,  fifty-tliree  divorces  were  granted  in  a  few  days  in 
February  and  March,  1849,  nearly  fourteen  years  after 
such  legislative  divorces  were  held  unconstitutional  by 
the  Supreme  Court  at  the  August  tenn,  1835,  in  State 
ex  rel.  Gentry  et  ux  v.  Frey  et  ciL,  in  4  Mo.  120.  This 
was  twelve  years  after  the  report  (4  Mo.)  was  pub- 
lished. 

Revised  Statutes  of  Missouri  A.  D.  1835,  page  401, 
section  1,  is  thus:  "Marriage  is  considered  in  law  as 
a  civil  contract,  to  which  the  consent  of  the  parties  cap- 
able in  law  of  contracting  is  essential."  I  can  not  find 
this  lang-uage  in  any  previous  Session  Act.  This  law 
has  been  continued  thus  in  Revised  Statutes  1845,  page 
729,  section  1;  Revised  Statutes  1855,  page  1061,  sec- 
tion 1 ;  General  Statutes  1865,  section  1,  page  458 ;  Re- 
vised Statutes  1879,  section  3264,  vol.  1,  page  553;  Re- 
vised Statutes  1889,  vol.  2,  page  1604,  section  6840;  Re- 
vised Statutes  1899,  page  1035,  section  4311. 

In  Bryson  v.  Rosanna  Campbell,  12  Mo.  498-9 
(Oct.  1849),  Bryson  had  been  divorced  by  special  act 
of  the  Legislature  in  February,  1845  (Session  Acts 
1844-5,  page  85).  His  wife,  after  the  divorce,  boarded 
with  Rosanna  Campbell.  The  husband  refused  to  pay 
his  wife's  boardbill.  The  plea  was  that  she  was  not  his 
wife  because  the  Legislature  had  divorced  them  and  he 
was  not  bound  to  pay  it.  That  was  one  of  the  bonds  of 
matrimony  from  which  he  was  released.  Rosanna 
Campbell  had  judgment  and  the  cause  was  removed  on 
error  to  the  Supreme  Court,  where  the  judgment  be- 
low was  affirmed. 

The  court  refused  to  depart  from  the  authority  of 
State  ex  rel.  Gentry  et  ux.  r.  Frey  et  al.,  4  Mo.  120,  et 
seq.  In  the  brief  for  plaintitf  in  error,  counsel  say,  p. 
498: 

"The  counsel  for  appellant  never  having  seen  the 
propriety  of  the  decision  in  the  case  of  State  v.  Frey, 
but  being  well   satisfied  of  the   legislative   power  to 


332  Law  of  Local  Taxation.  [Chap,  l-i 

grant  divorces,  and  believing  that  the  doctrine  laid 
down  in  that  case  is  not  satisfactory  to  the  Bar  gener- 
ally, respectfully  solicit  a  review  of  the  grounds  on 
which  it  was  decided." 

This  decision  was  rendered  in  October,  1849,  after 
Revised  Statutes  1835  went  into  effect,  whereby  it  was 
enacted  that  ''maniage  is  a  civil  contract."  Mr.  Bry- 
son  was  by  the  marriage  (this  civil  contract)  bound  to 
board  his  wife.  The  Legislature  could  not  relieve  Mr. 
Brj^son  from  that  obligation  of  the  marriage,  this  civil 
contract  and  the  act  of  the  Legislature  was  held  void 
as  impairing  the  obligation  of  that  contract. 

The  question  came  up  again  in  1853  in  Bryson  v. 
Bryson,  17  Mo.  590.  The  case  was  a  proceeding  to  ob- 
tain alimony  from  the  husband  because  the  husband 
had  abandoned  the  wife  without  cause,  and  had  re- 
fused to  maintain  and  provide  for  her.  The  defendant 
Bryson  set  up  the  legislative  divorce  as  a  release  and 
discharge.  The  legislative  divorce  was  held  unconsti- 
tutional and  the  judgment  for  alimony  was  affirmed. 
The  court  say : 

''The  question  is  again  presented,  no  doubt,  with 
the  hope  that  in  a  change  of  the  judges  there  may  be  a 
change  in  the  views  of  the  court,"  p.  591.  The  case  is 
put  mx)stly  on  the  ground  that  divorce  is  a  judicial  act 
beyond  the  powers  of  the  Legislature,  but  it  is  also  held 
that  such  legislative  act  impairs  the  obligation  of  the 
contract. 

"Those  who  had  not  legal  cause  for  seeking  a  di- 
vorce or  were  in  too  great  haste  to  wait  to  the  end  of 
regular  judicial  proceedings  and  have  therefore  resort- 
ed to  the  Legislature  to  obtain  releases  from  their 
bonds  of  matrimony,  must  be  content  to  take  the  acts 
they  have  obtained  without  expecting  courts  to  main- 
tain their  validity  against  the  Constitution  of  the 
State."    [17  Mo.  595.] 


Chap.  14]  Why  No  Judicial  Intebperence. 


333 


The  Bryson  case  again  came  up  in  1869  in  Bry- 
son  by  next  friend  v.  Bryson,  44  Mo.  232,  et  seq.,  at  the 
March  tenn,  1869.  Tlie  Missouri  Constitution  of  1865, 
article  4,  section  27,  contained  this  language:  *'The 
General  Assembly  shall  not  pass  special  laws  divorcing 
any  named  parties;"  the  last  Bryson  case  above  was  a 
suit  to  increase  alimony  and  the  defendant  again  set 
uj)  the  legislative  divorce  and  again  it  was  held  uncon- 
stitutional. 

The  constitutional  question  was  again  in  (juestion 
in  Richeson  v.  Simmons,  47  Mo.  20,  decided  in  1870,  un- 
der a  divorce  granted  by  the  Legislature  ]March  2, 
1849.  Here  the  wife  deeded  land  without  her  husband 
joining  her  (who  had  been  divorced  by  special  act  of 
the  Legislature).  The  husband  was  considered  to  have 
deserted  his  wife  and  to  have  been,  as  it  were,  "beyond 
seas"  under  general  common  law,  and  hence  she  had 
all  the  powers  of  a  femme  sole  under  general  common 
law  and  could  convey  her  real  estate.  By  his  conduct 
the  husband  could  make  no  claim  to  the  land.  He  was 
estopped.  Divorce  by  act  of  the  Legislature  is  uncon- 
stitutional as  impairing  the  obligation  of  contracts. 
The  husband  by  the  contract  of  marriage  was  entitled 
to  the  possession  and  use  of  the  wife's  land.  He  had 
that  right  notwithstanding  the  legislative  divorce; 
otherwise  there  is  nothing  to  be  estopped  from;  there 
is  nothing  for  the  estoppel  *'to  feed  on." 

The  case  admits  that  the  legislative  divorce  im- 
pairs the  obligation  of  the  contract,  but  the  one  partA^ 
to  the  contract  whose  contract  rights  are  violated  is  es- 
topped to  claim  his  rights  under  that  contract  as  he 
might  be  estopi^ed  from  claiming  contract  rights  un- 
der any  other  contract.  The  land  was  virtually  the 
separate  property  of  the  wife  and  she  might  convey  it 
whether  divorced  or  not. 

David  S.  Mavnard  and  Lydia  A.   MajTiard  were 


334  Law  of  Local.  Taxation.  [Chap.  14 

married  in  1828  in  Vermont.  They  went  to  Ohio  in 
1850.  During  that  year  the  husband  went  to  Oregon 
and  in  September  of  that  year  took  up  his  residence 
there  and  lived  there  till  his  death  in  1873.  Lydia  A. 
Maynard  died  in  Ohio  in  1879.  Henry  C.  Maynard  and 
Mrs.  Frances  J.  Patterson  are  the  children  of  that 
marriage  and  are  the  plaintiffs  in  the  case  of  Maynard 
V.  Hill,  125  U.  S.  190,  et  seq. 

In  April,  1852,  Maynard  settled  upon  a  tract  of 
640  acres  in  Oregon,  as  a  married  man,  claiming  the 
right  to  obtain  the  title  to  the  640  acres  under  the  act 
of  Congress,  United  States  statutes  at  Large,  vol.  9, 
496,  chap.  76.  [See  sec.  4.]  On  December  22,  1852,  the 
legislative  assembly  of  Oregon  divorced  Maynard  and 
his  wife.  On  January  15,  1853,  twenty-four  days  after 
the  legislative  divorce  Maynard,  the  divorced  husband, 
married  Catherine  T.  Brashears  and  thereafter  ihej 
lived  together  as  husband  and  wife,  till  his  death  in 
1873.  Maynard  lived  on,  cultivated  and  improved  the 
land  from  April  3,  1852,  to  April  3,  1856,  the  required 
four  years,  and  on  April  30,  1856,  applied  for  a  certifi- 
cate for  a  donation  claim  for  the  640  acres,  entitling 
him  and  his  second  wife  to  a  patent  for  the  land.  The 
officers  in  charge  of  the  land  office  at  first  granted  the 
certificate,  the  west  320  acres  to  the  husband  and  the 
east  320  acres  to  the  second  wife.  This  certificate  was 
annulled  by  the  commissioner  of  the  general  land  office 
on  the  ground  that  Lydia  A.  Maynard,  the  first  wife, 
was  supposed  to  be  dead  and  her  heirs  were  therefore 
entitled  to  the  land.  On  a  subsequent  hearing  before  the 
register  and  receiver,  the  first  wife  appeared  and  those 
officers  awarded  the  land  to  her  (east  320  acres)  and 
the  west  320  acres  to  the  husband.  The  case  was  ap- 
pealed to  the  commissioner  of  the  general  land  office. 
He  affirmed  the  decision  giving  the  west  320  acres  to 
the  husband,  but  reversed  the  holding  giving  the  east 


Chap.  14]  Why  No  Judicial  Interference.  335 

half  to  the  first  wife.  The  second  wife  was  not  entitled 
to  anything,  although  slie  lived  on  the  land,  Ix^^ause  she 
was  not  his  wife  in  1850,  or  within  a  year  thereafter,  as 
provided  by  the  act  of  Congress.  Under  this  act  of 
Congress  the  title  was  to  go  directly  to  the  wife,  and 
not  to  the  wife  through  the  husband.  The  executive  of- 
ficers of  the  United  States  held  that  the  land  still  be- 
longed to  the  United  States  and  that  neither  the  de 
facto  wife  nor  the  de  jure  wife  had  any  vested  interest. 
Neither  wife  had  any  contract  with  the  United  States. 
This  was  the  decision  of  the  land  ofiicers.  The  land  be- 
ing subject  to  sale  was  sold  to  defendants  Hill  and 
Lewis,  and  patent  issued  accordingly,  and  this  was  a 
suit  in  equity  to  divest  their  title  and  vest  it  in  plain- 
tiffs, children  of  the  first  wife,  the  bill  seeking  to  hold 
defendants  as  trustees  in  invitum,  as  they  were  charg- 
ed to  have  bought  with  full  notice.  Tbe  case  went  from 
the  Supreme  Court  of  Oregon  Territory  to  the  Su- 
preme Court  of  the  United  States.  At  last  the  de  jure 
wife's  claims  were  held  invalid. 

Section  9,  article  1,  Constitution  of  the  United 
States,  says :  "No  bill  of  attainder  or  ex  post  facto  law 
shall  be  passed. "  A  law  impairing  the  obligation  of 
contracts  is  not  forbidden. 

Section  10,  Constitution  of  the  United  States  says : 
''No  State  shall  pass  any  bill  of  attainder,  ex  iX)st  facto 
law  or  law  impairing  the  obligation  of  contracts." 

The  States  are  prohibited  from  passing  laws  im- 
pairing the  obligation  of  contracts ;  the  United  States 
are  not.  Neither  are  the  United  States  territories.  Con- 
gress may  pass  a  law  impairing  the  obligation  of  con- 
tracts or  Congress  may  authorize  the  territorial  legis- 
latures to  do  so.  When  Oregon  adopted  her  state  Con- 
stitution in  November,  1857,  legislative  divorces  were 
prohibited  under  article  -1-,  section  23,  subdi^ision  5. 
''If  the  act  declaring  the  divorce  should  attempt 


336  Law  of  Local  Taxation,  [Chap.  14 

to  interfere  with  rights  of  property  vested  in  either 
party,  a  different  question  would  arise."  [Opinion  of 
the  court  in  Maynard  v.  Hill,  125  U.  S.  190,  1.  c.  206, 
near  top.] 

Lender  the  general  common  law,  all  the  personal 
property  of  the  wife  becomes  the  property  of  the  hus- 
band immediately  on  the  marriage.  What  becomes  of  it 
under  a  legislative  divorce!  The  opinion  seems  to  in- 
timate it  will  remain  with  the  husband.  On  marriage 
and  birth  of  issue,  the  husband  has  his  curtesy.  Will  a 
legislative  divorce  divest  the  husband  of  that  interest! 
Congress  may  pass  a  retrospective  law.  Congress  may 
pass  a  law  impairing  the  obligation  of  contracts.  Con- 
gress could  have  passed  the  divorce  act  enacted  by  the 
Legislature  of  Oregon  Territory,  itself  the  creature  of 
Congress.  Congress  could  have  confirmed  it  or  reject- 
ed it.  Congress  could  act  on  the  subject.  Its  action  is 
not  rendered  void  by  the  Constitution  of  the  United 
States  because  it  is  retrospective  or  impairs  the  obliga- 
tion of  contracts  or  divests  vested  rights. 

In  the  matter  of  legal  obligation  the  bonds  of  mat- 
rimony ought  to  be  on  a  par,  at  least,  with  municipal 
bonds  and  contracts  to  dig  wells  or  make  sewers. 

In  all  cases  in  which  special  tax-bills  have  been  is- 
sued to  pay  for  public  improvements  there  has  been  a 
contract  to  do  the  work  and  that  contract  imposes  cer- 
tain obligations  on  the  contracting  parties.  After  these 
public  improvements  have  been  made  under  contracts 
duly  authorized  by  law,  then  the  legislative  power  of 
the  State  cannot  impair  in  any  degree  the  obligation  of 
the  contract.  That  obligation  cannot  be  impaired  in  any 
degree  on  the  part  of  either  party  to  the  contract  with- 
out the  consent  of  the  other.  The  Constitution  of  the 
State  and  the  laws  of  the  State  are  interpreted  by  the 
highest  judicial  tribunal  in  the  State,  and  it  frequently 
happens  that  constitutions  and  statutes  are  judicially 
overthrown  and  perverted. 


Chap.  14]  Why  No  Judicial  Interference.  337 

The  language  of  the  Constitution  of  the  United 
States  is  that  *'No  State  shall  pass  any  law  impairing 
the  obligation  of  coiitraets."  The  law  controlling  mu- 
nicipal bonds  and  that  controlling  special  taxes  and 
tax-bills  are  the  same.  There  were  certain  statutes 
enacted  in  the  various  States  of  the  Union  authorizing 
public  improvements  in  the  several  States.  Here  is  the 
origin  of  the  state  bond  and  municipal  lx)nd  and  the 
special  tax-bill.  Both  involve  the  power  of  taxation. 
Both  involve  contracts.  Both  result  in  money  obliga- 
tions, and  for  raising  the  required  money,  taxes  are  im- 
posed on  the  citizens  in  both  cases  alike. 

In  case  the  Legislature  of  the  State  enact  laws  au- 
thorizing the  issue  of  bonds,  and  then  after  the  bonds 
are  issued  and  sold  on  the  market  and  money  realized 
thereon,  as  evidently  intended,  the  Legislature  cannot 
then  enact  another  law  defeating  the  payment  in  part 
or  in  whole  of  such  bonds  issued  and  delivered  and  un- 
paid. The  state  Legislature  in  like  manner  can  make 
laws  authorizing  contracts  for  public  improvements  to 
be  paid  in  special  taxes  or  tax-bills.  After  the  contracts 
are  made  and  executed  the  Legislature  cannot  enact 
laws  under  which  the  contract  shall  be  held  invalid. 
The  State  cannot  ''Pass  a  law  impairing  the  obligation 
of  contracts."  But  what  is  it  for  a  State  to  ''Pass  a 
law  impairing  the  obligation  of  contracts  ? ' '  Questions 
of  power  or  authority  come  before  the  courts  on  bonds. 
The  courts  hold  that  the  bonds  are  issued  by  authority. 
Then  persons  relying  on  the  decisions  of  the  courts  as 
being  a  part  of  the  law  and  Constitution  so  construed, 
the  same  as  if  copied  into  them,  buy  the  bonds  on  the 
faith  of  such  decision  and  after  they  have  so  bought, 
relying  on  such  bonds  and  the  decision  of  the  courts 
that  they  are  issued  by  authority— if  then  the  courts 
change  their  decision  and  hold  that  the  bonds  are  is- 

22 


338  Law  of  Locat.  Taxation.  [Chap.  14 

sued  without  authority,  the  last  decisions  overruling 
the  first  decisions  becomes  a  part  of  the  Constitution 
and  statute  the  same  as  if  copied  into  them.  The  last 
decision  is  contradictory  to  the  first  decision.  Did  the 
State  by  such  decision  of  its  courts  "Pass  a  law  im- 
pairing the  obligation  of  contracts'?" 

At  first  glance  it  would  appear  that  the  State  did 
not  pass  any  law  at  all.  But  on  further  reflection  this 
section  of  the  Constitution  of  the  United  States  ought 
to  be  regarded  as  a  statute  highly  remedial  in  its  char- 
acter and  ought  to  be  so  construed  as  to  advance  the 
remedy  and  suppress  the  mischief. 

A  statute  is  enacted  and  the  courts  hold  it  consti- 
tutional and  valid;  then  after  contracts  are  made  un- 
der it  and  on  the  faith  of  the  decisions  supporting  its 
validity  the  law  is  repealed— so  repealed  in  terms  as 
to  nullify  contracts  made  under  it— the  repealing  stat- 
ute cannot  thus  impair  the  obligation  of  contracts. 

A  like  statute  is  enacted  for  public  improvements 
and  municipal  bonds  or  special  taxes  or  special  tax- 
bills.  Public  improvements  are  made ;  tax-bills  issued ; 
suits  thereon  are  brought  in  the  courts  resulting  in  a 
decision  of  the  highest  judicial  tribunal  in  the  State 
holding  the  tax-bills  valid  as  having  been  issued  by  au- 
thority of  a  constitutional  law.  Another  public  im- 
provement is  ordained  to  be  made  and  the  work  is  let 
by  contract  to  the  lowest  bidder.  The  work  is  done. 
The  work  is  done  as  required  by  contract  and  ordi- 
nance, and  suit  is  brought  to  enforce  the  contract  or  on 
tax-bills  issued  for  the  work.  The  Supreme  Court  held 
former  tax-bills  and  a  former  contract  valid  as  having 
been  made  by  authority  of  law.  That  decision  is  now 
overruled  and  the  contract  and  tax-bills  in  suit  are  held 
invalid  as  made  and  issued  without  authority  of  law. 

Although  this  result  is  attained  apparently  by  ju- 
dicial decision,  it  is  just  as  ruinous  as  if  accomplished 


Cha]).  14]  Why  No  Judicial  Interference.  389 

hv  legislative  act.  In  each  case  the  contractor's  loss  is 
precisely  the  same.  In  one  case  lie  relied  on  the  legis- 
lative act  and  lost,  and  in  the  other  he  relied  on  the  ju- 
dicial decision  as  l)eing  the  law  and  lost.  Here  is  a 
change  in  tlie  law.  It  is  wholly  immaterial  whether  that 
change  in  the  law  is  effected  by  the  Legislature  or  the 
courts.  The  State,  through  her  courts,  has  passed  a 
law  impairing  the  obligation  of  contracts. 

Speaking  of  this  judicial  legislation,  the  Supreme 
Court  of  the  United  States,  in  Ohio  Life  Insurance  and 
Tnist  Company  v.  DeBolf,  16  Howard  1.  c.  432  (a  writ 
of  error  to  the  Su]ireme  Court  of  the  State  of  Ohio), 
say: 

**  Indeed,  the  duty  imposed  upon  this  court  to  en- 
force contracts  honestly  and  legally  made,  would  be 
vain  and  nugatory,  if  we  were  ix)und  to  those  changes 
in  judicial  decisions  which  the  lapse  of  time,  and 
change  in  judicial  officers,  will  often  produce.  The 
writ  of  error  to  the  state  court  would  be  no  protection 
to  a  contract,  if  we  were  bound  to  follow  the  judgment 
which  the  state  court  had  given,  and  which  the  writ  of 
error  brings  up  for  revision  here.  And  the  sound  and 
true  rule  is  that  if  the  contract  when  made  was  valid  by 
the  laws  of  the  State,  as  then  ex])Ounded  by  all  the  de- 
partments of  its  government,  and  administered  in  its 
courts  of  justice,  its  validity  and  obligation  cannot  be 
impaired  by  any  subsequent  act  of  the  Legislature  of 
the  State  or  decision  of  its  courts,  aliering  the  con- 
struction of  the  law."  (This  decision  was  rendered  in 
1853.) 

The  above  language  is  quoted  with  approval  in 
GelpcTxe  r.  Dubuque,  1  Wall.  175,  at  206  (decided  in 
1863),  where  the  court  adds: 

''The  same  principle  applies  where  there  is  a 
change  of  judicial  decision  as  to  the  constitutional 
power  of  the  Legislature  to  enact  the  law.    To  this  rule 


o40  Law  of  Local  Taxation.  [Chap.  14 

thus  enlarged  ne  adhere;  it  is  the  law  of  this  court.  It 
rests  upon  the  plainest  principles  of  justice.  To  hold 
otherwise  woidd  be  as  unjust  as  to  hold  that  rights  ac- 
quired- under  a  statute  ma/y  he  lost  by  its  repeal." 

In  Havemeyer  v.  Iowa  County,  3  Wall.  294-,  1.  c. 
303,  the  court  say: 

"The  subsequent  adjudications  in  The  State  v. 
Leon,  decided  in  1859,  and  the  cases  which  followed  it 
hold  that  such  statutes  are  'of  a  general  nature'  and 
have  no  validity  until  joublished.  But  being  long  pos- 
terior to  the  time  when  the  securities  were  issued,  they 
can  have  no  effect  upon  our  decision  and  may  be  laid 
out  of  view.  We  can  look  only  to  the  condition  of 
things  which  subsisted  when  they  were  sold.  That 
brings  them  within  the  rule  laid  down  by  this  court,  in 
Gelpcke  v.  Dubuque.  In  that  case  it  was  held,  that  if 
the  contract  when  made,  was  valid  by  the  Constitution 
and  laws  of  the  State,  as  then  expounded  b}^  the  highest 
authorities  whose  duty  it  was  to  administer  them,  no 
subsequent  action  by  the  Legislature  or  judiciary  can 
imi^air  its  obligation.  This  ride  ivas  established  upon 
the  most  careftd  consideration.  We  think  it  rests  upon 
a  solid  foundation,  and  we  feel  no  disposition  to  depart 
from  it." 

There  is  some  difficulty  in  reconciling  the  decisions 
on  the  question  of  the  constitutional  powers  of  the 
States.  The  highest  judicial  tribunal  in  the  State  de- 
termines the  constitutional  (State)  and  statute  law  of 
the  State.  Municipal  corporations  are  the  creatures  of 
the  State  and  a  part  of  the  state  government.  The  state 
Constitution  determines  the  powers  given  to  the  differ- 
ent departments  of  the  state  government.  The  state 
Supreme  Court  determines  the  constitutional  powers 
of  all  the  departments  of  the  state  government,  and  its 
decision  is  final  and  becomes  a  part  of  the  state  Consti- 
tution the  same  as  if  copied  into   it.    One  legislature 


Chap.  14]  Why  No  Judicial  Interference.  341 

can  not  by  statute  law  bind  tbeir  successors  and  one  set 
of  judges  can  not  by  any  decision  bind  their  successors. 
Othei-wise  we  should  have  no  overruled  cases. 

In  Centred  Land  Company  v.  Laidley,  159  U.  S. 
103,  et  seq.  (A.  D.  1895),  the  coui-t  discuss  this  consti- 
tutional question.  It  is  the  legislative  powers  of  the 
courts.  The  question  came  up  on  the  constiniction  of  a 
state  statute  in  reference  to  the  statute  powers  of  mar- 
ried women  to  make  deeds  of  their  lands. 

The  state  Supreme  Court  had  held  such  deeds 
valid  under  the  statute,  and  thereupon  after  such  decis- 
ions were  rendered  and  on  the  faith  of  such  decisions 
as  to  the  powers  conferred  by  such  statute,  deeds  were 
taken  for  land  purchased  and  paid  for  and  these  deeds 
so  taken  were  brought  into  controversy  again  and  the 
first  decisions  were  overruled  and  decision  made  that 
the  deeds  were  without  authority.  Did  this  last  decis- 
ion impair  the  obligation  of  the  contract  (the  warranty 
deed  of  the  married  woman)?  Perhaps  this  is  not  a 
coiTect  statement  of  the  real  matter  in  controversy  and 
the  real  wrong  done. 

It  was  the  Virginia  statute  that  impaired  the  obli- 
gation of  the  contract,  not  the  court's  decision  as  to 
what  is  the  statute.  It  was  the  statute  that  was  con- 
trary to  the  Constitution  of  the  Ignited  States  not  the 
decision  of  the  court,  for  that  only  determined  what 
was  the  statute. 

We  have  in  1820  a  statute  in  Virginia  authorizing 
deeds  by  married  women.  Subsequently  we  have  no 
such  statute  and  never  had  it  in  1820  or  at  any  other 
time.  These  are  legislative  acts,  so  the  courts  decide, 
but  the  courts  do  not  make  the  statute  laws.  They 
only  interpret  them. 

If  the  Virginia  Legislature  had  enacted  two  differ- 
ent laws,  one  declaring  that  the  law  authorized  married 
women  to  convey  their  land  at  and  after  1820  and  after 


342  Law  of  Local  Taxation.  [Chap.  14 

deeds  had  been  made  under  it,  then  in  1865  another  act 
should  be  passed  that  in  1820  and  afterwards  married 
women  had  no  such  authority,  then  we  have  an  exact 
parallel.  The  last  legislative  act  ( retrosj^ective  in 
character)  imjoaired  the  obligation  of  contracts  made 
prior  to  its  passage.  These  Tvere  the  acts  of  the  Vir- 
ginia Legislature. 

The  Virginia  court  was  bound  to  decide  what  was 
the  statute  law  of  West  Virginia,  and  when  the  highest 
judicial  tribunal  in  the  State  determines  what  was  the 
statute  law  of  that  State  that  decision  was  conclusive. 
No  power  on  earth  can  declare  that  is  not  the  statute 
law  of  Virginia. 

The  assignment  of  errors  presents  the  point  thus, 
page  107 : 

"1.  That  the  purchase  of  the  said  land  of  the  said 
Pennybackers,  and  the  said  deed  conveying  the  same, 
became  an  executed  contract,  which  no  action  of  the  ju- 
diciary of  the  State  of  West  Virginia  had  any  right, 
authority  or  power  to  impair  or  invalidate  by  changing 
the  settled  construction  of  said  section  4  of  chapter  73 
of  the  Code  of  West  Virginia  of  1868." 

''2.  That  under  and  by  virtue  of  section  10  article 
1  of  the  Constitution  of  the  L^nited  States,  no  State  is 
permitted  to  pass  any  law  impairing  the  obligation  of 
contracts ;  that  the  statutory  constiiiction  of  the  law  of 
West  Virginia,  as  it  existed  when  the  contract  was 
made,  governed' the  rights  of  the  parties,  and  rights 
vested  under  such  existing  constructions  of  the  then 
laws  cannot  be  divested,  under  said  clause  of  the  Con- 
stitution of  the  United  States,  bj^  a  subsequent  decision 
of  the  state  courts  holding  contracts  invalid  that  were 
valid  when  made;  such  decisions  of  the  state  courts  are 
contrary  to  the  Constitution  of  the  United  States." 

"3.  Because  there  appears  on  the  record  of  said 
cause  a  Federal  question  in  this;   that   the   courts   of 


Chap.  14]  Why  Nu  Judicial  Interference.  343 

West  Virginia,  in  construing  the  said  statute  relating 
to  deeds  and  acknowledgments  tliereof  so  as  to  invali- 
date the  said  deed  to  C.  P.  Huntington,  under  which 
yoiir  petitioner  claims,  changed,  without  legislative  ac- 
tion, the  settled  and  established  construction  which  ex- 
isted at  the  time  of  the  execution  and  delivery  of  said 
deed,  which  is  contrary  to  the  Constitution  of  the 
United  States;  and  there  is  a  Federal  question 
raised  by  said  record  in  this;  that  the  said  decis- 
ion of  the  circuit  court  of  Cabell  county,  which  un- 
dei-takes  to  deprive  your  petitioner  of  his  property  is 
without  due  process  of  law,  retroactive  in  its  effect, 
and  unconstitutional."  This  was  a  writ  of  error  to  the 
Supreme  Court  of  West  Virginia.  The  court  say,  page 
109: 

"The  grounds  relied  on  for  invoking  the  apiJellate 
jurisdiction  of  this  court  are,  in  substance,  that  by  the 
decision  of  the  Supreme  Court  of  Appeals  of  West  Vir- 
ginia, wiflioiif  any  legislative  action,  the  obligation  of 
the  contract  contained  in  the  deed  from  ^Ir.  and  Mrs. 
Pennybacker  to  Huntington,  the  grantor  of  the  plain- 
tiff in  en-or,  has  been  impaired,  and  the  plaintiff  in  er- 
ror has  been  deprived  of  its  i)roperty  without  due  pro- 
cess of  law. " 

"Assuming  without  deciding,  that  these  gi'ounds 
were  sufficiently  and  seasonably  taken  in  the  courts  of 
West  Virginia,  we  are  of  the  opinion  that  they  present 
no  Federal  question.  In  order  to  come  within  the  pro- 
vision of  the  Constitution  of  the  United  States,  which 
declares  that  no  State  shall  pass  any  law  impairing  the 
obligation  of  contracts,  not  only  must  the  obligation  of 
a  contract  have  been  imi:)aired,  but  it  must  have  been 
State,  and  not  by  a  decision  of  its  judicial  department 
impaired  by  some  act  of  the  legislative  power  of  the 
only. 

"The  appellate  jurisdiction    of   this   court,    upon 


3-44  Law  of  Local  Taxation.  [Chap.  14: 

writ  of  error  to  a  court  on  the  ground  that  the  obliga- 
tion of  the  contract  has  been  impaired,  can  be  invoked 
only  when  an  act  of  the  Legislature,  alleged  to  be  re- 
pugnant to  the  Constitution  of  the  United  States,  has 
been  decided  by  the  state  court  to  be  valid,  and  not 
when  an  act  admitted  to  be  valid  has  been  miscon- 
strued by  the  court.  The  statute  of  West  Virginia  is 
admitted  to  have  been  valid,  whether  it  did  or  did  not 
apply  to  the  deed  in  question;  and  it  necessarily  fol- 
lows that  the  question  submitted  to  and  decided  by  the 
state  court  was  one  of  construction  only  and 
not  of  validity.  If  this  court  were  to  assume  juris- 
diction of  this  case,  the  question  submitted  for  its  de- 
cision would  be,  not  whether  the  statute  was  repugnant 
to  the  Constitution  of  the  United  States,  but  whether 
the  highest  court  of  the  State  has  erred  in  its  construc- 
tion of  the  statute. 

**As  was  said  by  this  court,  speaking  by  Mr.  Jus- 
tice G-rier,  in  such  a  case,  as  long  ago  as  1847:  'It  is 
the  peculiar  province  and  privilege  of  the  state  courts 
to  construe  their  own  statutes ;  and  it  is  no  part  of  the 
functions  of  this  court  to  review  their  decisions  or  as- 
sume jurisdiction  over  them  on  the  pretense  that  their 
judgments  have  impaired  the  obligations  of  contracts. 
The  power  delegated  to  us  is  for  the  restraint  of  un- 
constitutional legislation  by  the  States,  and  not  for  the 
correction  of  alleged  errors  committed  by  their  judic- 
iary." [Commercial  Bank  v.  Buckingham,  5  How.  317, 
343;  Laivler  v.  Walker,  14  How.  149,  154.] 

''It  was  said  by  Mr.  Justice  Miller,  in  delivering  a 
later  judgment  of  this  court:  'We  are  not  authorized 
by  the  judiciary  act  to  review  the  judgments  of  the 
state  courts,  because  their  judgments  refuse  to  give  ef- 
fect to  valid  contracts  or  because  those  judgments,  in 
their  effects,  impair  the  obligation  of  contracts.  If  we 
did,  every  case  decided  in   a    state    court    could    be 


Chap.  14J   Why  Xu  Judicial  Ixteefeiience.  345 

brought  here,  where  the  party  setting  up  a  contract 
alleged  that  tlie  court  had  taken  a  different  view  of  its 
obligations  to  that  which  he  held. '  [Knox  v.  Exchmige 
^a^A:,  12  Wall  379,  383.] 

"The  same  doctrine  was  stated  by  Mr.  Justice 
Harlan,  speaking  for  this  court,  as  follows :  *  The  state 
court  may  erroneously  determine  ciuestions  arising  un- 
der a  contract  which  constitutes  the  basis  of  the  suit 
before  it ;  it  may  hold  a  contract  void  which,  in  our 
opinion,  is  valid,  or  its  interpretation  of  the  contract 
may,  in  our  opinion,  be  radically  wrong;  but,  in  neither 
of  such  cases,  would  the  judginent  be  reviewable  by  this 
court  under  the  clause  of  the  Constitution  protecting 
the  obligation  of  contracts  against  impainiient  by  state 
legislation,  and  under  the  existing  statutes  defining  and 
regulating  its  jurisdiction,  unless  that  judgment  in 
terms  or  by  its  necessary  operation  gives  effect  to  some 
provision  of  the  state  Constitution,  or  some  legislative 
enactment  of  the  State,  which  is  claimed  by  the  unsuc- 
cessful party  to  impair  the  obligation  of  the  particular 
contract  in  question.'  [Leldgh  Water  Co.  v.  Easton, 
121  U.  S.  388,392.]" 

Other  cases  are  cited  without  comment.  The  court 
continuing  say : 

''The  decisions  cited  by  plaintiff  in  error  to  sup- 
port the  jurisdiction  of  this  court  in  the  case  at  bar 
were  either  cases  in  which  the  writ  of  error  was  upon 
a  judgment  of  a  state  court  which  gave  effect  to  a  stat- 
ute alleged  to  impair  the  obligation  of  a  contract  made 
before  any  such  statute  existed,  as  in  LouisimM  v.  Pils- 
hury,  105  U.  S.  278;  Chicago  Ins.  Co.  v.  Needles,  113 
U.  S.  574,  and  in  Mobile  and  Ohio  Bailroad  v.  Tennes- 
see, 153  U.  S.  486;  or  else  the  writ  of  error  was  to  a 
circuit  court  of  the  United  States  bringing  to  this 
court  the  whole  case,  including  the  question  how  far 
the  courts  of  the  United  States  should  follow  the  de- 


346  Law  of  Locai.  Taxation.  [Cliap.  14 

cisions  of  the  highest  court  of  the  State,  as  in  Gelpcke 
V.  Dubuque,  1  Wall.  175,  205;  Olcott  v.  Supervisors,  16 
Wall.  678,  690;  Douglass  v.  Pike  County,  101  U.  S.  677, 
686;  Anderson  v.  Santa  Anna,  116  U.  S.  356,  361;  and 
other  cases  cited  in  Louisiana  v.  Pilsbury,  105  U.  S. 
278,  295. 

' '  The  distinction  as  to  the  authority  of  this  court, 
between  writs  of  error  to  a  court  of  the  United  States 
and  writs  of  error  to  the  highest  court  of  a  State,  is 
well  illustrated  by  two  of  the  earliest  eases  relating  to 
municipal  bonds,  in  both  of  which  the  opinion  was  de- 
livered by  Mr.  Justice  Swayne,  and  in  each  of  which 
the  question  presented  was  whether  the  Constitution  of 
Iowa  permitted  the  Legislature  to  authorize  municipal 
corporations  to  issue  bonds  in  aid  of  the  construction 
of  a  railroad.  The  Supreme  Court  of  the  State,  by  de- 
cisions made  before  the  bonds  in  question  were  issued, 
had  held  that  it  did ;  but  by  decisions  made  after  they 
had  been  issued,  held  that  it  did  not.  A  judgment  of 
the  District  Court  of  the  United  States  for  the  District 
of  Iowa,  following  the  later  decisions  of  the  state  court, 
was  reviewed  on  the  merits,  and  reversed  by  this  court, 
for  misconstruction  of  the  Constitution  of  Iowa. 
[Gelpcke  v.  Dubuque,  1  Wall.  175,  206.]  But  a  writ  of 
error  to  review  one  of  those  decisions  of  the  Supreme 
Court  of  Iowa  was  dismissed  for  want  of  jurisdiction, 
because,  admitting  the  Constitution  of  the  State  to  be 
a  law  of  the  State,  within  the  meaning  of  the  provision 
of  the  Constitution  of  the  United  States  forbidding  a 
State  to  pass  any  law  imi>airing  the  obligation  of  con- 
tracts, the  only  question  was  of  its  construction  by  the 
state  court.  [Railroad  Co.  v.  McClure,  10  Wall.  511, 
515.] 

"When  the  parties  have  been  fully  heard  in  the 
regular  course  of  judicial  proceedings,  an  erroneous  de- 
cision of  a  state  court  does  not  deprive  the  unsuccessful 


Chap.  14]  AVhy  No  Judicial  Interference.  347 

jjarty  of  his  proi)erty  witliout  due  i)roeess  of  law,  with- 
in the  fourteenth  anieudment  of  the  Constitution  of  the 
United  States.  [Walker  v.  Sauvinet,  92  U.  S.  90;  Head 
V.  Amoskeag  Co.,  113  U.  S.  9,  26;  Marley  v.  Lake  Shore 
Railroad,  146  U.  S.  162,  171;  Bergman  v.  Backer,  157 
U.  S.  655.]" 

The  case  was  dismissed  for  want  of  jurisdiction. 

On  well-settled  principles  of  general  law,  the  Su- 
preme Court  of  the  Ignited  States  cannot  reverse  the 
judgment  of  any  state  Supreme  Court  unless  that  judg- 
ment is  erroneous,  and  if  it  is  erroneous  then  tlie  Su- 
preme Court  of  the  United  States  has  no  jurisdiction. 

The  Supreme  Court  of  Iowa,  by  a  series  of  decis- 
ions, held  that  municipal  railroad  aid  bonds  were  au- 
thorized by  the  state  Constitution.  Then  the  question 
again  came  up  in  the  Supreme  Court  of  Iowa  and  that 
court  by  a  series  of  decisions  held  these  municipal 
bonds  were  without  authority  in  the  Constitution  of  the 
State.  Then  the  Circuit  Court  of  the  United  States  for 
the  district  of  Iowa  followed  the  construction  of  the 
Iowa  Constitution  placed  on  it  by  the  Su]ireme  Court 
of  Iowa,  and  rendered  its  decision  that  these  Iowa  bonds 
were  without  constitutional  authority.  But  on  hearing 
the  case  on  error  in  the  Supreme  Court  of  the  United 
States,  that  judgment  was  reversed  because  it  was  not 
erroneous.  The  case  was  remanded  to  the  United 
States  District  Court  so  that  that  court  could  enter  a 
judgment  that  was  erroneous  in  lieu  of  the  one  reversed 
which  was  not  erroneous.  What  the  state  court  decides, 
is  erroneous  in  United  States  courts;  and  what  United 
States  courts  decide,  is  erroneous  in  the  state  courts. 

If  the  Supreme  Court  of  the  United  States  may 
disregard  the  decisions  of  the  highest  judicial  tribunal 
in  the  State  on  the  question  of  the  constitutional  power 
of  the  State  Legislature  to  enact  laws  in  reference  to 
railroad  aid  bonds,  because  commercial  securities  are 


348  Law  of  IjOcal.  Taxation.  [Chap.  14 

involved,  then  they  may  sweep  away  the  parts  of  the 
Constitution  prohibiting-  the  making  of  eommercial  se- 
curities. The  State  cannot  in  this  way  interfere  with 
commerce. 

The  decisions  of  the  Supreme  Court  of  Towa  and 
that  of  the  Supreme  Court  of  the  United  States,  al- 
though they  seemingly  conflict  with  each  other,  are  both 
right.  In  Railroad  Co.  v.  McClure,  10  Wall.  511,  515, 
the  State  of  Towa  had  adopted  a  certain  Constitution. 
Municipal  corporations  apparently  had  the  power 
(from  the  language  used)  to  issue  railroad  aid  bonds. 
Such  bonds  were  issued.  Various  persons  bought  the 
bonds  paying  therefor  their  full  value,  relying  on  the 
language  and  meaning  of  the  Constitution.  After  the 
bonds  were  issued  and  sold  on  the  market  their  valid- 
ity was  denied  by  the  municipal  corporations  issuing 
them.  The  corporations  claimed  that  there  was  no  con- 
stitutional authority  to  authorize  their  issue.  Suit  was 
brought  on  some  of  these  bonds ;  the  answer  set  up  that 
the  bonds  were  without  authority  of  law ;  that  they 
were  prohibited  by  the  state  Constitution.  The  case 
went  to  the  Supreme  Court  of  the  State.  That  court 
held  that  the  acts  of  the  Legislature  of  Iowa,  authoriz- 
ing the  issue  of  the  bonds,  were  not  in  conflict  with  the 
Constitution  of  the  State  of  Iowa ;  and  the  statute  was 
valid  and  the  bonds  were  issued  by  authority  of  law. 

The  Supreme  Court  of  Iowa,  in  thus  interpreting 
the  state  Constitution,  did  not  pass  a  law  (either  im- 
pairing the  obligation  of  contracts  or  otherwise).  The 
court  merely  interpreted  what  the  statute  (constitu- 
tional) law  was.  The  court  in  no  sense  passed  a  law; 
the  people  of  Iowa  and  her  Legislature  did  that.  The 
law  is  a  mere  expression  of  the  legislative  intent.  The 
legislative  power  may  in  plain  tenns  declare  its  intent. 
If  not  declared  in  plain  terms,  that  intention  must  be 
ascertained  by  the  application  of  various   rules  of  in- 


Chap.  14]  Why  No  Judicial  Interference.  349 

terpretation.  But  these  rules  are  merely  intended  to 
ascertain  the  actual  legislative  intent.  What  is  the  ac- 
tual legislative  intent,  is  a  question  for  the  courts  and 
not  for  the  Legislature.  This  is  especially  true  of  the 
state  Constitution.  The  courts  do  not  enact  the  state 
statute  laws  or  pass  the  laws  (impairing  the  obligation 
of  contracts).  "Jus  dicere"  is  the  province  of  the 
courts;  "jus  dare,"  that  of  the  Legislature. 

A  certain  law  is  enacted  authorizing  municipal 
bonds  for  public  improvements.  Certain  persons  buy 
the  bonds  for  full  value.  The  public  have  the  money. 
Without  considering  the  constitutional  provision  that 
retrospective  laws  shall  not  be  passed,  the  Legislature 
cannot  defeat  the  bonds  by  repealing  the  law  authoriz- 
ing their  issue,  such  repeal  being  enacted  after  the 
bonds  were  sold  and  before  suit  brought  on  them.  The 
Legislature  may  conclude  that  it  made  a  mistake ;  that 
it  misconstrued  the  Constitution  and  had  no  power  to 
act.  After  the  Legislature  pass  an  act,  may  the  citi- 
zen rely  on  it?  May  he  act  under  it?  It  is  a  question 
of  power.  That  question  of  power  does  not  de])end  on 
the  degree  to  which  it  may  be  exercised.  If  the  Legis- 
lature pass  a  bad  law  they  ought  to  repeal  it.  If  the 
Supreme  Court  of  any  State  make  a  wrong  decision  on 
the  Constitution  or  statute  laws  of  the  State,  the  court 
ought  to  overrule  it  and  make  a  correct  decision.  Can 
the  honest  citizen,  aiming  to  be  guided  by  the  law  and 
follow  it  in  ever^"  respect,  rely  on  the  acts  of  the  Legis- 
lature and  act  under  such  statute  laws  as  made  by  the 
Legislature  and  inteipreted  by  the  courts?  May  the 
honest  citizen  rely  on  the  decisions  of  the  highest  ap- 
pellate court?    May  he  act  accordingly? 

'  *  The  interpretation  witliin  the  jurisdiction  of  one 
State  becomes  a  part  of  tJie  law  of  that  State,  as  much 
so  as  if  incorporated  into  the  body  of  it  by  the  Legisla- 
ture.   If,  therefore,  different  interpretations  are  given 


350  Law  of  Local  Taxation.  [Chap.  14 

in  different  States  to  a  similar  local  law,  that  law  in  ef- 
fect becomes  by  the  interpretations,  so  far  as  it  is  a 
rule  for  our  action,  a  different  law  in  one  State  from 
what  it  is  in  the  other."  [Christy  v.  Pridgen,  4  Wall. 
196,  203  ([uoted  in  Union  Bank  v.  Kansas  City  Bank, 
136  U.  S.  223,  235.] 

Then,  the  same  statute  in  the  same  State,  receiv- 
ing at  different  times  different  varied  and  contradic- 
tory constructions,  is  a  different  statute  at  one  time 
from  what  it  is  at  another.  The  change  is  just  the  same 
as  if  written  in  the  body  of  the  act  by  the  Legislature. 
The  Constitution  of  Iowa  at  first,  in  fonn,  authorized 
municipal  railroad  aid  bonds.  The  Supreme  Court  so 
held.  Then  the  Supreme  Court  held  such  bonds  were 
not  only  not  authorized  by  the  Constitution  of  Iowa, 
but  were  in  effect  forbidden  by  that  instrument.  The 
Iowa  Constitution  was  a  different  Constitution  at  one 
time  from  what  it  was  at  the  other  time.  If  Iowa  and 
Kansas  had  adopted  the  same  Constitution,  in  the  same 
language,  at  the  same  time,  then  the  Supreme  Court  of 
Kansas  may  put  one  construction  on  her  Constitution 
and  the  Supreme  Court  of  Iowa  may  put  a  different 
construction  on  the  Iowa  Constitution.  The  Kansas 
Constitution  and  the  Iowa  Constitution  are  certainly 
laws.  Whsii  is  Kansas  statute  law  and  what  is  Iowa 
statute  law  (for  constitutions  are  only  statutes),  are 
questions  for  the  Supreme  Court  of  each  State  to  deter- 
mine. Some  tribunal  somewhere  must  determine  fin- 
ally and  conclusively  what  is  the  statute  or  constitu- 
tional law  of  each  State.  No  one  can  allege  that  such 
construction  is  erroneous.  It  is  the  peculiar  province 
of  the  Supreme  Court  of  each  State  to  determine  what 
is  the  statute  law  of  such  State. 

The  Kansas  Constitution  is  different  from  the 
Iowa  Constitution.  They  are  different  laws.  They  be- 
come different  laws  solely  by  the  differing  construe- 


Chap.  14]  Why  No  Judicial  Ixterference.  351 

tions  placed  on  them  by  the  Siipi-eme  Court  of  each 
State.  It  was  the  Constitution  that  authorized  the  is- 
sue of  tlie  bonds,  not  the  decision  of  the  courts.  In 
the  other  case,  it  was  Constitution  that  ])rohibited  the 
issue  of  the  bonds,  not  the  decision  of  the  courts.  Iowa 
had  a  different  Constitution  at  one  time  from  wliat  she 
had  at  another  time. 

I  beg  pardon  for  suggesting  that  the  matters  in 
controversy  in  these  cases  were  not  thoroughly  consid- 
ered or  adjudicated.  We  first  have  the  Constitution  of 
Iowa,  under  which,  by  legislative  enactment,  municipal 
railroad  aid  bonds  are  issued.  Then  we  have  a  contro- 
versy on  the  constitutional  validity  of  the  statute  au- 
thority to  issue  the  bonds.  The  Supreme  Court  holds 
that  they  have  such  authority.  Cases  follow  and  the 
bonds  are  sustained.  Then  the  state  Supreme  Court 
changes  its  ruling.  They  now  hold  that  the  bonds  are 
without  authority  of  law.  ''That  was  not  the  law  till 
their  honors  spoke. ' '  No  one  can  say  the  first  decision 
was  erroneous.  No  one  can  say  the  second  decision  is 
erroneous,  although  it  is  contradictory  to  the  first. 

Legislative  acts  (under  our  constitutions  prohibit- 
ing retrospective  legislation)  are  always-  prospective. 
Our  judicial  decisions  are  always  retrospective.  Leg- 
islative acts  declare  what  the  law  shall  be ;  judicial  de- 
cisions declare  what  the  law  is  and  has  been.  The  judg- 
ment to  express  the  matters  really  adjudicated  should 
be  thus:  Bonds  were  issued  and  sold  on  the  market. 
The  bonds  were  issued  and  sold  after  the  judicial  decis- 
ion that  they  were  valid  and  issued  by  authority.  That 
decision  becamie  and  was  a  part  of  the  law  and  formed 
part  of  the  contract.  If  the  bonds  were  not  made  and 
bought  on  the  faith  of  the  decision  as  rendered,  then 
the  purchaser  has  no  claim  to  the  protection  of  the 
court.  The  court  now  holds  that  these  bonds  are  with- 
out authoritv.     Such  statute  is  a  different  law  at  the 


352  Law  of  Local  Taxation.  [Chap.  14 

last  decisions  from  what  it  was  at  the  first  decisions. 
The  last  statute  does  or  does  not  impair  the  obligation 
of  contracts.  The  Supreme  Court  of  Iowa  held  that 
the  Constitution  of  Iowa  did  not  authorize  the  bonds. 
The  last  Constitution  of  Iowa  impaired  the  obligation 
of  contracts  made  under  the  first  Iowa  Constitution.  In 
rendering  the  decision  the  court  must  have  held  that 
the  obligation  of  the  contract  was  not  impaired. 

The  twenty-fifth  section  of  the  judiciary  act  (U.  S. 
Statutes  at  Large,  vol.  I,  p.  20,  sec.  25,  now  Revised 
Statutes  of  U.  S.  1878  (p.  133,  sec.  709)  is  thus:  It 
gives  jurisdiction  to  the  Supreme  Court  of  the  United 
States  to  review  judgments  of  the  Suj^reme  Courts  of 
the  States  in  any  case  "where  is  drawn  in  question  the 
validity  of  the  statute  of  the  state  [a  state  Constitution 
is  a  statute]  as  being  repugnant  to  the  Constitution  of 
th  United  States  and  the  decision  is  in  favor  of  the 
validity  of  the  statute." 

Here  in  this  Iowa  bond  case,  bonds  were  bought  re- 
lying on  the  statute  and  the  Constitution  of  Iowa  and 
the  decisions  of  the  courts.  The  purchaser  lost ;  he  was 
deceived  by  both.  In  his  business  transactions  the  hon- 
est citizen  cannot  rely  either  on  the  state  Constitution 
or  the  state  statutes  or  the  Iowa  courts  or  the  Consti- 
tution of  the  United  States  or  the  Supreme  Court  of 
the  United  States.  Here  we  have  the  Iowa  municipal 
bonds  issued  by  authority  (in  form  at  least)  of  the 
Iowa  statute  under  the  Iowa  Constitution.  The  Legis- 
lature and  the  courts  hold  the  bonds  valid.  That  is  the 
statute.  So  the  Supreme  Court  of  Iowa  holds  on  this 
Iowa  statute.  Wlio  shall  say  that  decision  is  erroneus? 
Then  bonds  are  again  issued  after  such  decision  and 
sold  on  the  market  to  a  purchaser  who  relies  on  the 
Constitution,  the  statute,  and  the  judicial  decisions.  In 
a  suit  on  these  bonds  in  the  state  court,  the  court  over- 


Chap.  14]  Why  No  Judicial  Interference.  353 

rules  its  former  decisions  and  holds  that  the  bonds  are 
issued  witliout  authority.  This  is  not  an  erroneous  de- 
cision. Although  one  decision  may  be  the  opposite  of 
the  other,  yet  each  was  the  law  at  the  time  it  was  ren- 
dered. What  is  the  statute?  Who  can  detennine  this 
but  the  couiif  A  void  statute  is  no  statute  in  legal  ef- 
fect. 

At  the  time  Mrs.  Pennybacker  made  her  deed  to 
Mr;  Huntington  the  deed  was  valid.  This  was  statute 
law,  so  interpreted  by  the  courts  of  Virginia  and  West 
Virginia.  Who  could  say  that  the  Virginia  statute  did 
not  authorize  the  deed  when  the  highest  judicial  trib- 
unal in  the  State  decided  finally  and  conclusively  that 
the  statute  did  authorize  it?  At  the  time  the  Hunting- 
ton deed  was  made  it  was  valid;  at  the  trial  it  was  void. 
At  the  time  the  deed  was  made  the  statute  authorized 
it;  at  the  time  of  the  trial  the  statute  prohibited  it.  The 
Virginia  statute  declai-ing  this  deed  valid  was  a  differ- 
ent statute  from  that  declaring  it  void.  The  last  stat- 
ute impairs  the  obligation  of  the  contract  made  under 
the  first  statute.  The  deed  was  valid  under  the  first 
statute  and  void  under  the  second.  Mr.  Huntington 
lost  his  land  under  a  deed,  valid  by  statute  when  he 
took  it,  and  void  by  statute  at  the  trial.  The  court 
should  have  determined  what  was  the  statute  when  the 
deed  was  made  and  what  was  the  statute  at  the  trial. 
If  the  statutes  varied,  then  the  question  to  be  consid- 
ered would  be,  when  was  the  contract  made  ?  The  last 
decision  is  the  one  to  be  relied  on.  Tn  this  way  the  citi- 
zen may  rely  on  the  United  States  and  state  Constitu- 
tions, the  Legislatures,  and  the  United  States  and  state 
courts.  He  may  accordingly  buy  lands  or  bonds  or 
make  any  other  contracts.  As  it  is,  the  honest  citizen 
cannot  place  any  dependence  or  rely  in  any  degree  on 
the  Constitution  of  the  United  States  or  of  the  State, 

23 


354  Law  of  Local  Taxation.  [Chap.  1-i 

or  the  state  statutes,  or  the  decisions  of  her  courts,  or 
even  of  the  Supreme  Court  of  the  United  States. 

It  is  the  peculiar  province  of  the  Supreme  Court 
of  any  State  to  declare  what  is  the  statute  law  of  that 
State  and  what  is  the  Constitution  of  that  State.  And 
when  the  decision  is  made,  then  that  is  or  is  not  the 
Constitution  or  statute  law  of  such  State.  The  decis- 
ion interprets  the  Constitution  and  statute,  the  decis- 
ion does  not  make  the  Constitution  or  statute.  The 
statute  law  in  force  when  the  bonds  are  sued  on  may 
forbid  what  was  authorized  and  done  when  the  bonds 
were  made. 

In  Toivnship  of  Pine  Grove  v.  Talcott,  19  Wall,  at 
677,  the  court  say  (quoted  heretofore) : 

' '  The  question  before  us  belongs  to  the  domain  of 
general  jurisprudence.  In  this  class  of  cases  this  court 
is  not  bound  by  the  judgments  of  the  courts  of  the  State 
where  the  cases  arise.  It  must  hear  and  determine  for 
itself.    Here  commercial  securities  are  involved." 

It  must  not  be  forgotten  that  these  "commercial 
securities"  are  not  claimed  under  any  general  common 
law.  This  writer  has  yet  to  find  a  case  anywhere  re- 
ported in  the  books  holding  that  the  general  common 
law  authorized  a  local  tax  without  the  aid  of  any  stat- 
ute, or  that  by  general  common  law  without  statutory 
aid  any  municipal  corporation  could  execute  negotiable 
municipal  bonds.  May  the  States  legislate  on  the  sub- 
ject of  "negotiable  securities?"  May  the  state  Su- 
preme Court  interpret  such  statute  laws  so  enacted  on 
the  subject  of  "negotiable  securities?" 

If  the  Supreme  Court  of  the  United  States  are  not 
bound  by  the  interpretation  of  the  state  statute  or  Con- 
stitution made  by  the  state  Supreme  Court,  then  they 
are  not  bound  by  the  state  Constitution  or  the  state 
statute,  for  that  interpretation  is  the  statute  and  that 
is  the  Constitution. 


Chap.  14J  Why  No  Judicial  Interference.  355 

In  Central  Land  Co.  c.  Laidley,  15'J  U.  !S.  103,  if 
the  assignmeut  of  errors  liad  pointed  out  tlie  error  that 
the  statute  at  the  time  the  deed  was  made  was  a  differ- 
ent statute  from  tiiat  in  force  at  the  trial,  then  there 
would  have  heen  presented  the  (piestiun  whether  the 
Virginia  statute  (as  last  interpreted  which  was  cor- 
rect) impaired  the  obligation  of  the  deed  (contract) 
made  under  the  former  decision  (which  was  correct) 
construing  the  statute  (whidi  construction  was  cor- 
rect). But  the  assignment  of  errors  does  not  proceed 
on  this  theory.  In  one  point  it  assumes  that  the  Vir- 
ginia statute  in  force  at  the  time  the  deed  was  made 
authorized  the  deed.  This  was  correct.  Xo  one  could 
deny  it.  The  grantee  bought  the  land,  made  his  con- 
tract and  paid  for  the  land  when  this  was  undisputed 
law.  At  the  trial  the  deed  was  without  authority  and 
conveyed  notliing.  This  was  the  statute  law  at  the 
trial.  The  decision  so  holding  is  not  erroneous.  The 
first  series  of  decisions  on  the  Virginia  deeds  was  cor- 
rect ;  they  were  not  erroneous ;  the  second  series  of  de- 
cisions made  by  the  Virginia  Supreme  Court  were  cor- 
rect, but  the  assignment  of  errors  says  they  were  er- 
roneous. The  Virginia  statute  never  changed.  This 
is  not  true  in  fact  or  law.  The  Virginia  statute  that 
made  this  deed  valid  is  a  different  statute  from  the  Vir- 
ginia statute  which  made  this  deed  void.  It  was  the 
statute  and  not  the  decision  which  made  the  deed  void. 

Of  course,  all  suits  on  municipal  bonds  in  Iowa,  as 
well  as  elsewhere,  are  brought  in  I'^nited  States  courts, 
where  the  courts  hold  that  the  nninicipal  bonds  are  is- 
sued by  valid  state  constitutional  authority,  and  not  in 
the  state  courts  where  the  holding  is  that  the  municipal 
bonds  are  without  state  constitutional  authority.  Such 
bonds  would  not  stay  in  Iowa.  That  they  left  the  State 
was  a  matter  to  be  expected.  Here  are  two  sets  of  de- 
cisions on  the  Iowa  Constitution.   The  first  series  of  de- 


356  Law  of  Local  Taxation.  [Chap.  14 

cisions  holds  tliat  the  Towa  Constitution  authorizes  mu- 
nicipal bonds,  and  the  second  series  that  the  Constitu- 
tion does  not  give  such  authority.  Both  are  correct; 
neither  is  erroneous.  The  United  States  courts  holds 
the  second  series  of  Iowa  decisions  erroneous  and  the 
first  series  without  error.  The  State  courts  hold  the 
first  series  erroneous  and  the  second  series  without  er- 
ror. 

As  far  as  the  Constitution  of  the  United  States 
is  concerned,  in  its  provision  that  no  State  shall  pass  a 
law  impairing  the  obligation  of  contracts,  both  courts 
have  fallen  into  error.  If  the  Legislature  make  a  bad 
law  they  should  repeal  it,  but  not  so  as  to  effect  contract 
rights  acquired  under  it.  If  the  courts  make  an  erron- 
eous decision,  they  should  correct  it,  but  not  so  as  to  ef- 
fect contract  rights  made  under  the  law  as  interpreted 
when  the  contract  was  made.  United  States  courts  now 
hold  that  the  state  Constitution  of  Iowa  authorizes 
bonds,  and  the  state  courts  that  the  bonds  are  prohibit- 
ed. The  United  States  courts  decide  and  continue  to 
hold  that  the  second  series  of  state  decisions  are  erron- 
eous and  will  doubtless  continue  to  so  hold  ad  infinitum 
even  as  to  bonds  issued  after  the  second  series  of  decis- 
ions in  the  state  courts  had  been  made.  United  States 
courts  are  not  bound  by  the  decisions  of  state  courts  on 
state  statutes  and  state  constitutions  where  negotiable 
securities  are  concerned,  and  on  negotiable  securities  it 
is  to  be  inferred  that  state  statutes  and  state  constitu- 
tions will  be  disregarded.  The  negotiable  bond  market 
dominates  state  Supreme  Court  decisions,  state  statutes 
and  state  constitutions.  It  accomplishes  their  complete 
overthrow. 

Ever^''  state  must  make  its  own  constitution  and 
statute  laws  and  there  must  be  some  tribunal  some- 
where— some  judicial  tribunal  where  such  constitution 
and  statute  laws  are  authoritatively  interpreted  and 


Chap.  14]  Why  No  Judicial  Interference.  357 

deteraiined.  If  tlio  Sui)reme  Court  of  the  United 
States  may  disregard  the  judginents  and  decisions  of 
the  higliest  judicial  tribunal  of  tlie  states  affecting  the 
interpretation  and  construction  of  state  constitutions 
and  state  statutes,  then  they  may  disregard  the  state 
constitutions  and  state  statutes.  There  can  be  no  mid- 
dle ground.  The  Sui)reme  Court  of  Michigan  deter- 
mined that  municipal  bonds  were  prohibited  by  her 
constitution.  Notwithstanding  such  decision  municipal 
bonds  were  issued  and  sold  on  the  market. 

If  Michigan  should  adopt  a  constitution,  prohib- 
iting in  toto  the  issue  of  municipal  bonds,  would  that 
express  constitutional  prohibition  meet  with  any  other 
or  different  fate  from  that  of  her  old  constitution  and 
the  judicial  construction  put  on  that  constitution  by 
the  highest  judicial  tribunal  in  the  State? 

The  special  tax-bill  is  the  superior  of  the  munici- 
pal bond.  The  municipal  bond  is  valid  only  in  the 
hands  of  the  purchaser  for  value  before  maturity  witli- 
out  notice,  but  the  special  tax-bill  is  valid  in  the  hands 
of  the  original  wrongdoer  even  if  injurious,  ruinous 
consequences  follow  the  prohibited  acts  for  which  the 
tax-bills  are  issued.  AH  public  improvements  are  made 
under  contracts— just  as  much  contracts  as  municipal 
bonds.  These  contracts  are  under  the  protection  of 
the  Constitution  of  the  United  States.  Our  courts  can 
not  hold  them  invalid  even  if  they  damage  or  destroy 
property.     Quo  vadimusf 

The  question  is  discussed  at  some  length  by  the  Su- 
preme Court  of  Missouri  (October  tenn,  1905),  in  the 
case  of  SedaUa  to  the  use  of  The  Sedalia  National  Bank 
V.  Donahue,  190  Mo.  407,  et  seq.  The  bank  bought  cer- 
tain tax-bills,  relying  on  certain  appellate  court  decis- 
ions as  to  the  city's  ])ower  to  issue  them.  The  bank  in 
making  the  purchase  relied  on  certain  appellate  court 
decisions,  an  appellate  court  which  has  done  much  to 


358  Law  of  Local  Taxation.  [Chap.  14 

confine  municipalities  to  the  enforcement  of  the  statute 
laws  of  Missouri.  The  bank  in  making  the  purchase 
relied  on  court  decisions  and  was  deceived,  and  the  Su- 
preme Court  affirmed  the  deception. 

The  court  holds,  as  the  Virginia  court  and  the  Su- 
preme Court  of  the  United  States  holds,  that  the  same 
statute  which  authorizes  the  tax-bills  prohibits  them. 
The  court  refer  to  The  Central  Land  Company  v.  Laid- 
ley,  159  U.  S.  103. 

The  Virginia  statute  made  the  Huntington  deed 
valid  when  Mr.  Huntington  paid  for  the  land  and  took 
the  deed  for  it,  relying  on  the  statute  and  the  decisions 
of  the  courts  of  Virginia.  The  Virginia  statute  prohib- 
ited that  deed  after  it  was  made.  The  same  statute  that 
made  the  Huntington  deed  valid,  prohibited  it  and 
made  it  void.  And  yet  the  Virginia  statute  did  not  im- 
pair the  obligation  of  this  contract  (Huntington's 
warranty  deed)  ! 

This  last  Missouri  decision  teaches  one  important 
lesson  to  all  people  who  are  in  business.  You  cannot 
safely  rely  on  judicial  decisions.  The  courts  are  not 
to  be  trusted.  The  old  maxim,  "Interest  Reipuhlicae 
nt  sit  finis  Uti/um,"  has  been  changed  to  "Interest  Rei- 
puhlicae ut  sit  finis  litium  non,"  putting  the  most  im- 
portant word,  ''non,"  last,  so  that  the  memory  may  lin- 
ger long  on  that  which  is  most  important. 

Has  the  blind  goddess  of  Justice  become  a  street- 
walking  strumpet? 


CHAPTER  15. 


CONCLUSION. 


In  conclusion  the  writer  would  ask  the  property- 
owner,  the  reader,  the  citizen,  to  reflect  on  the  matters 
referred  to  in  this  book.  The  accumulations  of  a  life- 
time are  at  stake.  The  home  of  yourself,  your  fam- 
ily and  children  are  at  stake.  That  home  may  be  taxed 
one  hundred  per  cent  of  its  value  and  sold  to  pay  the 
cost  of  doing  it  a  damage  prohibited  by  the  Constitu- 
tion, and  the  courts  can  afford  you  no  relief.  If  the 
property-owner  make  resistance  in  the  courts  or  else- 
where, the  modem  law  puts  him  in  the  disagreeable 
position  of  one  who  has  received  a  large  benefit  from 
]niblic  work,  and  in  refusing  to  pay  for  it  he  is  despic- 
able, contemptible  and  vile,  to  be  shunned  by  all  good 
(self-styled  progressive)  citizens.  It  is  the  stop-thief 
cry  of  the  centuries.  It  is  part  and  parcel  of  the  divine 
right  of  kings.  ''The  king  can  do  no  wrong."  The 
common  council  cannot  by  their  acts  damage  private 
property  for  public  use.  Their  determination  that  their 
public  improvements  benefit  the  citizen  cannot  he  dis- 
puted, even  when  the  proposed  benefit  is  a  damage  ten 
times  the  amount  of  the  cost.  The  Constitution  as  ju- 
dicially interpreted  declares  the  incendiary's  torch  a 
benefit. 

The  legislative  power  is  always  aggressive.  It  is 
the  power  which  threatens  to  ''Draw  within  its  impet- 
uous vortex  all  other  powers  of  the  government."  Here 
our  common  councils  have  absolutely  unlimited  powers 
over  the  real  property  of  the  citizen.  If  they  may  un- 
der laws  passed  by  constitutional  authority,  have  and 
exercise  this  unlimited  power  over  real  property,  they 

(359) 


360  L.\w  OF  Local  Taxation.  [Chap.  15 

may  by  legislative  enactment  have  and  exercise  this 
nulimited  power  over  personal  property,  and  all  other 
property  unfortunately  subjected  to  its  power. 

By  an  act  of  the  Missouri  Legislature,  approved 
April  14,  1905  (Session  Acts  or  Laws  of  Missouri  1905, 
pages  282-291),  land  may  be  taxed  for  a  road  to  the 
extent  of  $100  per  acre.  This  is  merely  one  step  fur- 
ther in  the  wrong  direction. 

There  is  absolutely  no  limit  to  the  amount  of  the 
tax. 

A  two  hundred  per  cent  local  tax  may  be  levied  on 
the  full  value  of  land  and  a  two  hundred  per  cent  tax 
on  the  full  value  of  the  benefit  conferred  without  any 
violation  of  the  fourteenth  amendment  to  the  Constitu- 
tion of  the  United  States.  That  amendment  was  not 
designed  to  secure  such  "delusive  exactness." 
[Louisville  and  Nashville  R.  R.  Co.  v.  Barber  Asphalt 
Paving  Co.  (A.  D.  1905),  197  U.  S.  430,  and  cases  cited 
on  page  434.]  The  Kentucky  statute  referred  to  pro- 
vided that  ' '  The  courts  in  which  suits  may  be  pending 
shall  make  all  corrections,  rules  and  orders  to  do  jus- 
tice to  all  parties  concerned."  But  the  courts  hold 
that  they  cannot  make  corrections  of  legislative  enact- 
ments. 

Some  have  said  that  the  courts  and  judges  are  cor- 
nipt  and  \acious.  I  do  not  believe  it.  This  assertion 
is  a  serious  error.  Courts  and  judges  are  and  have 
been  sincere  and  honest,  and  in  consequence  thereof 
the  damage  has  been  greater. 

Sir  William  Blackstone  has  told  us  that  the  ob- 
jects for  the  consideration  of  the  laws  of  England  are 
two  fold :  first,  persons ;  second,  things.  The  Supreme 
Court  of  the  United  States,  at  December  term,  A.  D. 
1856,  in  case  of  Dred  Scott  v.  Sandford,  19  Howard 
393  to  633,  decided  that  a  black  person  was  not  a  per- 
son at  all,  but  a  mere  thing.     The  black  man  had  na 


Chap.  15]  Conclusion,  3()1 

more  capacity  to  sue  than  a  horse  or  a  sawlog  or  other 
inanimate  object.  This  decision  gave  to  any  white  man 
the  right  to  oal]  tlie  roll  of  his  slaves  at  the  foot  of  Bun- 
ker Hill  monument  or  in  Illinois,  notwithstanding  the 
Constitution  of  Massachusetts  and  of  Illinois  had  de- 
clared that  black  persons  were  persons  and  not  things, 
and  that  slavery  did  not  exist  and  should  not  exist. 
In  1834  Dred  Scott,  a  Missouri  slave,  was  taken  to  Illi- 
nois (he  did  not  escape  there)  and  remained  there  for 
two  years.  He  was  a  slave  notwithstanding  the  Con- 
stitution of  Illinois  prohibited  slavery.  "We  have  the 
exact  counterpart  in  Missouri  and  other  States.  Our 
Constitution  prohibits  damagmg  private  property  for 
public  use  without  just  compensation.  And  yet  nearly 
every  one  of  these  States  authorizes  a  local  tax  on  dam- 
aged property  (the  damaging  being  expressly  prohib- 
ited by  the  Constitution)  to  ])ay  the  cost  of  the  forbid- 
den damage.  Notwithstanding  this  act  (damaging)  is 
prohibited,  still  courts  imply  a  power  to  tax  the  dam- 
aged property  for  doing  the  prohibited  act.  Slavery 
existed  in  Illinois  notwithstanding  her  Constitution 
prohibited  it.  Property  can  be  damaged  in  the  States 
notwithstanding  the  state  Constitutions  prohibit  it. 
And  the  courts  enforce  the  law  of  slavery  and  the  law 
of  valdalism  and  robl^eiy  alike,  notwithstanding  state 
constitutional  lu'ohibitions,  however  absolute  such  con- 
stitutional restrictions  may  be. 

State  legislatures  and  state  courts  seem  to  have 
had  little  difficulty  in  breaking  through  the  cobweb 
chains  of  paper  constitutions.  Nine  years  after  the  de- 
cision was  rendered  in  Dred  Scott  v.  Sandford,  the 
thirteenth  amendment  to  the  Constitution  of  the  United 
States  abolished  slave r}-  (in  fonu  at  least)  in  all  the 
United  States.  The  fourteenth  amendment  followed 
soon. 

Our  courts  decided  at  an  earlv  dav  that  legisla- 


362  Law  of  Local  Taxation.  [Chap.  15 

tive  divorces  were  unconstitutioual.  Such  divorces  im- 
paired the  obligation  of  contracts ;  they  were  retrospec- 
tive in  their  operation  and  such  legislative  divorces 
were  an  exercise  of  judicial  power  by  the  Legislature 
in  conflict  with  that  provision  of  the  Missouri  Consti- 
tution that  the  powers  of  the  government  were  divided 
into  three  distinct  departments,  eacli  of  which  should 
be  confided  to  a  separate  magistracy,  and  no  person 
charged  with  the  exercise  of  powers  properly  belonging 
to  one  department  should  exercise  any  powers  properly 
belonging  to  either  of  the  other  departments,  with  very 
limited  exceptions,  and  the  exceptions  strengthen  in 
cases  not  excepted.  ^Ye  have  seen  the  repeated  at- 
tempts to  overthrow  tlie  Constitution  by  repeated  leg- 
islative divorces,  the  state  Legislature  claiming  the  un- 
limited powers  of  the  English  Parliament  notwith- 
standing our  constitutional  restrictions  and  our  judic- 
ial decisions.  The  Missouri  Legislature  for  a  long 
series  of  years  defied  the  Constitution  and  the  courts 
until  the  Missouri  Constitution  of  1865  in  terms  pro- 
hibited divorces  by  legislative  act.  It  must  be  now  left 
to  the  courts  to  be  decided  on  notice  and  hearing  and 
an  opportunity  to  be  heard. 

The  reader  cannot  fail  to  notice  the  long  contin- 
ued and  persistent  effort  on  the  part  of  state  legisla- 
tures and  state  courts  to  overthrow  state  constitutions 
and  restrictions  and  substitute  the  English  Constitu- 
tion and  the  unlimited  powers  of  the  English  Parlia- 
ment. 

On  special  tax-bills  and  municipal  bonds  no  change 
can  now  be  made  in  state  Supreme  Court  decisions. 
The  Constitution  of  the  United  States  prevents  any 
change  of  this  state  statute  and  this  state  Constitution 
by  legislative  act  or  judicial  decision,  or  even  an 
amendment  of  the  state  Constitution  as  to  bonds  or  tax- 
bills  in  force  under  the  present  state  constitutions  and 


Chap.  15]  Conclusion.  363 

the  present  statutes.     This  prohibition  is  accomplished 
under  that  clause  of  the  Constitution    of   the    United 
States  which  i)rohibits  the  States  from  passing  laws 
impairing  the  obligation    of   contracts.      Local    taxes 
were  held  unconstitutional  if  tlie  work  for  which  the 
taxes  were  levied  was  a  general   benefit    only    to    the 
property  taxed ;  now  the  tax  is  valid  if  that  work  done 
for  which  the  tax  is  levied  be  a  damage  to  the  lot  to 
the  extent  of  ten  times  (or  more)  the  cost  of  the  work. 
The  tax  is  valid  to  the  extent  of  one  hundred  per  cent 
of  the  damaged  property,  or  to  the  extent  of  the  whole 
value  of  the  property  when  it  is  no  benefit  whatever 
to  the  property  taxed.  The  state  courts  in  all  the  States 
now  hold  such  taxes  valid.    They  cannot  now  hold  them 
void  and  thus  impair  the  obligation  of  the  contractor's 
contract  to  make  the  improvement.     There  is  just  as 
much  power  to  make  the  tax-bill  as  there  was  to  make 
the  municipal  bond.    Even  in  the  hands  of  the  innocent 
purchaser  for  value  without  notice,  before  maturity, 
the  municipal  bond  is  comparatively  harmless.      The 
public  pay  a  general  tax  and  get  nothing  for  it,  but  in 
case  of  the  special  tax-bill  the  taxpayer  must  in  addi- 
tion suffer  the  loss  in  having  his  property  damaged. 
He  may  be  compelled  to  pay  for  the  vandalism  to  the 
extent  of  the  entire  value  of  his  land.     It  is  no  answer 
to  say  that  the  city  or  town  corporation  may  be  sued 
for  the  tort  and  ''just  compensation" for damagingmay 
be  recovered.  The  owner  may  bring  replevin  against  the 
horse  thief  for  the  stolen  horse,  but  he  is  not  bound  to 
pay  the  thief's  costs  and  expenses.     But  the  lotowner 
is  bound  to  pay  the  lot  thief  his  costs  and  expenses. 
The  state  Constitution  is  the  lot  thief's  only  refuge. 
The  contractor  for  public  work  under  his  contract  has 
a  right  to  the  tax  to  the  extent  of  the  whole  value  of 
the  property,  together  with  the  whole  value  of  the  im- 
provements thereon,    even  if   the   work   occasion    the 


364:  Laav  of  Local  Taxation.  [Chap.  15 

property-owner  a  damage.  The  state  courts  in  all  the 
States  now  hold  such  special  taxes  valid.  They  cannot 
now  hold  them  invalid.  To  do  so  would  give  us  dif- 
ferent charters,  different  laws,  different  constitutions, 
from  those  in  existence  at  the  time  the  public  improve- 
ment contracts  were  made.  We  have  court-made  con- 
stitutions and  court-made  statutes.  But  the  courts  (no 
more  than  the  legislatures)  cannot  change  the  statutes 
(by  giving  them  a  different  interpretation  and  con- 
stiTiction)  so  as  to  affect  precedent  contracts.  The 
courts  (no  more  than  the  people  themselves  acting  un- 
der the  forms  of  law)  cannot  now  change  the  state  Con- 
stitution so  as  to  affect  contracts  made  under  the  Con- 
stitution. The  courts  cannot  make  that  cbange  by  giv- 
ing the  Constitution  a  different  construction  and  inter- 
pretation. The  state  Constitution  is  a  law.  To  say 
what  the  law  is  in  a  given  case  is  of  the  very  essence 
of  judicial  duty.  The  Constitution  is  a  different  Con- 
stitution at  one  time  under  one  construction  and  inter- 
pretation from  what  that  Constitution  is  at  another 
time  under  another  and  different  construction  and  in- 
terpretation. 

The  evil  consequences  are  alike  in  both  cases.  The 
property-owner  must  pay  the  special  tax  without  an 
equivalent  in  the  form  of  the  special,  peculiar,  excep- 
tive benefit  or  lose  his  property.  If  the  property-own- 
er be  successful  in  the  defeat  of  the  tax  in  court,  then 
the  contractor  loses  his  time,  labor  and  materials.  In 
either  case  the  public  reaps  the  profit  in  getting  the 
street  made  or  improved  or  other  public  improvement. 
The  city  gets  the  street  for  nothing  except  that  in  this 
robbery  of  the  property-owner  or  contractor  it  pays  the 
salarv'  of  its  own  employees— in  the  robbery  it  pays  off 
its  hired  hands. 

Either  the  property-owner  is  robbed  of  his  real  es- 
tate or  the  contractor  of  his  labor  and  materia].    The 


Chap.  15]  Conclusion.  365 

city  gets  the  pul)lic  improvement  without  cost  or  price. 
If,  under  such  circumstances,  puljlic  improvements  are 
not  made,  the  failure  cannot  ])e  attributed  to  a  lack  of 
power  or  authority  in  the  city  government.  The  real 
culprit  is  easily  discovered.  It  is  the  king,  tlve  public 
(the  city  represents  the  public).  It  is  "the  king's  high- 
way. The  king  improves  the  street."  The  king  au- 
thorizes his  sen^ant  to  take  the  first  real  estate  he  finds, 
that  adjoining  his  work,  and  sell  it  to  pay  this  servant 
for  improving  "the  king's  highway." 

''The  King  can  do  no  wrong."  It  is  the  old  doc- 
trine of  the  "divine  right  of  kings."  The  real  estate 
owner  may  be  ruined  by  an  enonnous  tax  for  a  work 
which  occasions  the  ruin  of  his  property;  the  property- 
owner  has  no  recourse.  The  contractor  may  find  that 
the  abutting  real  estate  is  not  of  sufficient  value  to  pay 
the  tax  against  it.  The  contractor  may  thus  lose  part 
of  his  just  dues  and  the  landowner  all  of  his  land,  but 
the  public  reaps  the  benefit  and  pays  nothing.  A  local 
tax  without  the  landowner's  consent  in  writing  should 
never  be  allowed  to  be  levied  to  an  amount  exceeding 
the  special,  peculiar,  exceptive  benefits  added  to  the 
property  taxed  by  reason  of  the  proposed  improve- 
ment. 'V\niether  a  local  improvement  is  a  peculiar, 
special,  exceptive  benefit  to  abutting  property  and  how 
much,  should  be  a  judicial  question  for  the  courts  with 
the  requirement  in  the  law  that  the  public  authorities 
must  prove  the  fact  and  amount  of  benefit.  The  ques- 
tion of  the  value  of  the  public  im]irovement  to  the  pulv 
lie  (when  it  is  proposed  to  be  done  by  local  tiix)  should 
be  a  judicial  question,  and  if  the  public  improvement  is 
not  worth  its  cost  its  constmction  should  not  be  al- 
lowed without  the  consent  in  writing  of  the  abutting 
landowners. 

The  Constitution  should  be  restored  to  what  it  was 
prior  to  its  judicial  overthrow.     This  should  be  "a  tax 


366  Law  of  Local  Taxation.  [Chap.  15 

on  benefits."  And  the  tax  should  not  exceed  the  ben- 
efits, special  and  peculiar,  to  the  property  taxed.  Local 
taxation  without  special  benefits  was  at  one  time  con- 
fiscation, forbidden  by  our  constitutions.  No  legisla- 
tive power  on  earth  should  be  allowed,  without  the 
owner's  consent  in  writing,  to  absorb  the  whole  value 
of  a  person's  property  in  the  interest  of  the  public, 
without  rendering  a  full  equivalent.  The  legislative 
power  that  takes  or  taxes  should  not  be  permitted  to 
determine  values  or  benefits  or  damages. 

If,  in  doing  a  public  work  (as  for  instance  grad- 
ing a  street  as  in  Keith  v.  Bingham)  the  legislative 
power  may  determine  that  the  work  is  a  benefit  to  the 
individual  and  tax  accordingly,  then  what  is  a  benefit 
to  the  individual  cannot  be  a  damage  to  him.  There 
can  be  no  just  compensation  for  damaging  private 
property  for  public  use  when  that  property  is  benefited, 
as  determined  by  the  Legislature  in  the  exercise  of  the 
power  of  taxation.  There  is  nothing  left  for  the  court 
and  commissioners  or  court  and  jury  to  pass  on.  There 
is  nothing  left  for  the  Constitution  to  operate  on.  If 
the  legislative  power  may  take  one  dollar  above  the 
special  benefit,  that  power  may  take  the  whole  prop- 
erty, the  entire  fortune  of  the  owner. 

The  plain  intent  of  the  Constitution  is,  that  "the 
just  compensation"  shall  be  paid  in  advance,  includ- 
ing ' '  just  compensation ' '  for  taking  or  damaging.  The 
property-owner  must  be  paid  in  advance.  This  plain 
constitutional  right  is  openly  violated  without  any 
means  of  redress. 

In  Keith  v.  Bingham^  100  Mo.  300,  et  seq.,  it  was 
admitted  that  the  property  was  damaged  by  grading 
May  street.  There  was  no  just  compensation  made 
or  paid  to  any  one.  Payment  was  not  made  in  advance 
as  required  by  the  Constitution. 


Chap.  15]  Conclusion.  367 

It  was  not  necessary  to  comply  with  the  Constitu- 
tion. 

In  McQuiddij  v.  Smith,  G7  Mo.  App.  205  (A.  D. 
1896),  the  court  held,  page  208: 

"It  was  not  intended  by  the  provisions  of  the  char- 
ter of  1889  (Kansas  City)  to  make  the  assessment  of 
damages  and  benefits  for  grading  a  street  a  condition 
precedent  to  the  authority  of  the  city  to  order  the  im- 
provement and  assess  the  cost  thereof  to  the  abutting 
property.  The  purpose  of  article  8  was  to  prepare  a 
way  by  which  the  city  could  have  settled  ))eforehand 
the  damages  to  be  incurred  by  the  proposed  improve- 
ment, so  that  it  might  be  advised  in  advance  whether 
or  not  it  was  proper  and  for  the  public  go^  d  to  prose- 
cute the  work." 

The  Constitution  requires  payment  of  just  com- 
pensation in  advance.  The  Kansas  City  charter  gives 
the  city  government  the  option  to  comply  with  the  Con- 
stitution and  pay  in  advance  or  do  the  forbidden  work 
in  violation  of  the  Constitution  and  let  the  landowner 
sue.  The  court  merely  interpreted  the  Kansas  City 
Charter.  Whether  it  is  constitutional  to  take  property 
for  public  use  without  just  compensation  in  advance, 
or  damage  property  for  public  use  without  payment  in 
advance,  is  not  discussed.  The  Court  of  Appeals  had 
no  jurisdiction  over  that  or  any  other  constitutional 
question. 

If  the  act  of  the  city  was  rightful  according  to  the 
Constitution,  how  could  :\rrs.  Smith  get  judgment 
against  Kansas  City  for  $2,750?  If  it  was  wi'ongful 
how  could  the  city  compel  Mrs.  Smith  to  pay  for  it  ? 
The  evident  meaning  of  the  Constitution  was  to  re- 
([uire  ]iayment  in  advance.  The  ]niblic  must  ascertain 
and  pay  just  compensation  in  advance.  In  the  event 
that  any  public  authority  should  either  take  or  damage 
private  property  for  public   use   without   payment   in 


368  Law  of  Local,  Taxation.  [Chap.  5 

advance,  then  the  landowner  should  be  entitled  under 
the  Constitution  to  treble  damages.  I  know  this  may 
to  some  appear  harsh,  but  if  the  citizen  have  a  constitu- 
tional right,  it  ought  to  be  secured  to  him  by  such  sanc- 
tions as  will  cause  that  right  to  be  respected.  Private 
property  should  not  be  taken  or  damaged  for  public  use 
without  just  comi^ensation  paid  in  advance,  and  in  the 
event  of  taking  or  damaging  without  pa^aiient  in  ad- 
vance, then  the  person  or  corporation  that  takes  or 
damages  should  be  liable  to  treble  damages.  Ascer- 
tain just  compensation  by  jury,  and  then  require  the 
court  to  enter  judgment  for  three  times  the  amount.  Re- 
store to  the  citizen  the  right  to  hold  property  honestly 
acquired  by  him.  That  constitutional  right  consists 
now  entirely  of  sound. 

The  history  of  railroad  and  road  construction  is 
familiar  to  the  peojDle  of  Missouri  and  other  States. 
Greneral  taxation  in  Missouri  and  other  states  is  lim- 
ited by  constitutional  restrictions.  It  is  so  limited  as 
not  to  exceed  a  certain  per  cent  of  the  assessed  value, 
being  five  per  cent  in  Missouri.  A  tax  in  excess  of  five 
per  cent  on  assessed  values  is  not  to  be  tolerated— a 
debt  in  excess  of  five  per  cent  of  the  taxable  property 
is  not  to  be  tolerated  (for  a  debt  must  be  paid  by  a  tax). 
The  Constitution  prohibits  any  tax  or  debt  in  excess 
of  five  per  cent  of  the  assessed  values.  Railroads  and 
roads  may  double  or  treble  or  quadruple  the  value  of 
property,  yet  taxation — general,  taxation— is  prohib- 
ited above  five  per  cent. 

The  state  Legislatures  have  been  prohibited  from 
building  railroads  and  roads,  or  lending  state  aid  on 
that  account  or  making  bonds.  The  legislative  judg- 
ment was  not  to  be  trusted.  Counties,  cities,  towns, 
villages  and  unorganized  strips  of  land  issued,  under 
legislative  enactments,  municipal  bonds  for  roads  and 
railroads.     The  official  judgment  of  these  public  offi- 


Chap.  15J  Law  of  Local  Taxation.  369 

cers  was  mistrusted  and  these  authorities  were  limited 
by  tlie  retiuireuieut  of  a  ijopular  vote.  This  proved  iu- 
eiTectual,  and  the  power  was  taken  away  entirely. 
These  restrictions  and  prohibitions  were  made  because, 
under  the  best  .indf^nent  of  state  lep^islatures,  county 
courts,  city,  town  and  village  governments,  we  had  ten- 
cent  railroads  for  dollar  taxes,  or  no  railroad  or  road 
at  all. 

But  in  all  the  long  continued  municijjal  bond  liti- 
gation in  all  the  states  we  fail  to  meet  a  case  where 
the  property-owner  had  to  pay  a  tax  to  damage  his 
own  property.  Now,  in  Missouri  a  municipal  bond 
debt  exceeding  five  per  cent  of  the  assessed  value  of 
the  property  cannot  be  created  under  the  state  Con- 
stitution even  with  the  consent  of  every  voter,  notwith- 
standing the  fact  that  the  work  for  which  the  debt  may 
be  incurred  shall  double  and  treble  the  values  (the 
sale  values)  of  all  the  lands  and  property  in  the  mu- 
nicipality. A  like  limitation  should  apply  to  local  tax- 
ation. No  difference  how  great  the  benefit,  the  tax  or 
debt  should  not  exceed  five  pter  cent  of  assessed  values. 
The  debt  runs  for  twenty  years. 

Real  estate  in  our  cities,  towns  and  villages  has 
increased  in  sale  value  from  one  dollar  and  twenty-five 
cents  i)er  acre  to  five  and  even  ten  thousand  dollars  per 
front  foot,  but  that  increase  in  sale  value  was  not  due 
to  tax-bills.  Even  if  the  benefit  be  one  hundred  per 
cent  or  two  hundred  per  cent  or  three  hundred  per 
cent,  yet  the  tax  cannot  exceed  five  per  cent.  This  is 
the  constitutional  rule  for  general  taxation.  Be  lib- 
eral and  make  your  constitutional  rule  provide  that  the 
special  tax  shall  not  exceed  twenty-five  per  cent  of  the 
assessed  value.  No  difference  how  great  in  amount  the 
special  l)enefits  may  be,  fix  the  rule  at  twenty-five  per 
cent,  five  times  the  amount  allowed  by  the  Constitu- 
tion in  general  taxation.     Our  counties,  cities,  towns 

24 


370  L.4.W  OF  Local  Taxation.  [Cliap.  15 

and  villages  should  cease  to  be  "get  rich  quick"  corpo- 
rations. 

Five  per  cent  of  the  assessed  value  of  property  is 
the  utmost  debt-making  power.  This  is  "the  ultima 
thule"  beyond  which  we  cannot  go.  When  work  has 
been  done  on  a  street  without  the  consent,  in  writing, 
of  the  landowner,  and  that  work  does  not  damage 
abutting  property  and  does  not  benefit  it,  there  should 
be  no  special  tax  against  it.  State  constitutions  now 
provide  certain  restrictions  in  the  interest  of  private 
property.  These  restrictions  are  designed  for  the 
special  protection  of  the  property-owners  in  enabling 
them  to  hold  their  property.  Our  constitutions  pro- 
vide (by  imiDlication  in  some  cases  and  in  express  terms 
in  others)  that  private  property  shall  not  be  taken  for 
private  use  except  in  the  limited  number  of  cases  of 
private  ways  of  necessity,  and  then  compensation  must 
be  rendered.  In  1856  this  was  an  implication  in  the 
Missouri  Constitution  {Wells  v.  Weston,  22  Mo.  384). 
Xow  in  Missouri  it  is  an  express  prohibition.  Under 
present  constitutional  law,  wherever  there  is  a  consti- 
tutional restriction  or  prohibition  in  favor  of  the  per- 
son or  his  property,  there  the  State  may  nevertheless 
do  the  jDrohibited  act,  or  authorize  any  of  its  subdivis- 
ions, its  cities,  towns  and  villages,  to  do  the  prohibited 
act ;  and  acting  under  such  authority  they  may  do  the 
prohibited  act  and  then  levy  a  special  tax  against  the 
very  property  damaged  which  was  designed  to  be  pro- 
tected by  the  prohibition,  and  the  tax  for  that  act  is  a 
valid  tax,  notwithstanding  the  act  was  prohibited.  The 
Constitution  must  go  further  and  in  terms  prohibit 
both  the  act  and  all  power  to  tax  the  injured  person  or 
property  on  account  of  the  prohibited  act. 

Dred  Scott  was  taken  by  his  master  to  Illinois  as  a 
slave  and  held  there  as  a  slave  for  two  years,  and  he 
still  remained  a  slave  notwithstanding  the  Constitution 


Chap.  15]  Conclusion.  371 

of  Illinois  prohibited  slaver>\  Slavery  did  exist  iu 
Illinois  notwithstanding  her  Constitution  prohibited  it. 
The  Southern  slaveowner  had  the  right  to  take  his 
slaves  to  Massachusetts  and  there  use  them  as  he  used 
any  other  proj>erty — he  had  the  right  to  call  the  roll 
of  his  slaves  at  the  foot  of  Bunker  Hill  monument, 
notwithstanding  the  Constitution  of  Massachusetts 
prohibited  slavery. 

Prior  to  18(30  this  tax,  this  local  tax,  could  in  no 
case  be  laid  without  this  special,  peculiar,  exceptive 
benefit.  To  so  levy  this  local  tax  without  the  special 
benefit  was  confiscation  which  was  merely  one  of  the 
ways  of  taking  the  citizen's  property  for  public  use, 
prohibited  by  the  Constitution. 

One  case  decided  in  the  Supreme  Court  of  Mis- 
souri in  June.  19<)6  {State  ex  inf.  Hadley  v.  Peoples 
United  States  BanJx\  Spemer  Receiver,  Appellant) 
seems  to  indicate  that  this  inroad  on  the  constitutional 
rights  of  the  citizen  may  have  a  limit.  In  that  case  the 
attorney-general  had  proceeded  against  the  Peoples 
United  States  Bank  under  local  statutes,  a  receiver 
had  been  appointed,  he  was  duly  qualified,  gave  bond 
and  took  possession  of  the  assets  of  the  bank  and  had 
paid  a  large  amount  of  the  debts  of  the  bank ;  then  the 
court  determined  it  had  no  jurisdiction  and  entered 
the  appropriate  judgment  and  the  receiver  was  di- 
rected to  deliver  all  the  property  and  assets  to  the 
bank,  and  make  and  state  his  account.  He  did  so  and 
the  court  approved  his  accounts.  He  asked  an  allow- 
ance of  $12,100  for  his  services.  That  was  refused.  He 
paid  the  money  into  court  and  filed  his  motion  for  al- 
lowance of  fees  for  his  services.  The  court  allowed 
$2,500  for  seven  days  work,  $500  for  attorney's  fees 
and  $150  for  additional  attorneys  fees,  total  $.3,150 
fees.  The  amount  was  allowed,  but  as  costs  generally, 
and  the  receiver  insisted  that  the  amount  should  be 


•^70 


Law  of  Local  Taxation.  [Chap.  15 


paid  out  of  the  funds  in  court  and  not  as  costs  gener- 
ally. The  receiver  claimed  that  the  order  was  erron- 
eous on  two  grounds,  first,  the  amount  was  too  small, 
second,  the  charge  should  have  been  against  the  funds 
in  coui-t.  These  funds  were  benefited  by  the  receiver's 
acts.  Debts  were  paid  and  such  payment  was  affirmed 
by  the  bank.  More  than  two  and  one-half  millions  had 
passed  through  the  receiver's  hands.  He  had  given  a 
large  bond  at  large  expense.  The  court,  at  page  613, 
say: 

"We  are  referred  to  authorities  which  hold  that  as 
a  general  rule  the  receiver  is  entitled  to  his  pay  out  of 
the  funds  in  his  hand,  regardless  of  what  the  final  judg- 
ment on  the  merits  of  the  case  may  be,  and  we  are  pre- 
pared to  accept  that  as  a  general  rule,  with  the  quali- 
fications we  have  hereinabove  mentioned.  But  we  have 
not  been  pointed  to  any  authority  which  holds  that, 
where  there  was  absolutely  no  justification  in  the  act 
aj^pointing  a  receiver,  and  the  act  was  in  its  nature  to 
the  injury  of  tlie  defendant,  he  should  nevertheless  pay 
for  the  injury  that  was  done  him,  and  if  there  are  such 
authorities  we  do  not  care  to  see  them." 

There  can  certainly  be  no  justification  (except, 
perhaps,  the  decisions  of  all  our  state  supreme  courts) 
for  paying  the  costs  of  damaging  private  jDroperty  for 
public  use  out  of  the  property  damaged.  But  here  it 
seems  the  court  refused  to  pay  the  cost  (of  damaging 
these  bank  funds)  out  of  the  damaged  bank  funds.  The 
bank  was  not  bound  to  pay  for  damaging  its  property, 
its  credit,  its  good  name,  by  having  a  lien  fastened  on 
its  property. 

Although  millions  were  not  involved  in  Mrs. 
Smith's  case  here  in  Kansas  City,  that  lady  might  ap- 
propriately ask  the  court  why  she  was  compelled  to  pay 
$300  (67  Mo.  App.  205)  for  damaging  her  property  to 
the  extent  of  $2,750  (128  Mo.  23).    Was  it  because  a 


Cliap.  15J  Conclusion.  37;> 

state  Constitution  is  of  less  consequence  than  the  gen- 
eral common  or  statute  law? 

Under  modern  state  constitutions,  individual 
rights  were  supposed  to  have  been  ])rotected.  No  man's 
property  shall  be  taken  or  damaged  for  public  use  with- 
out just  compensation  ascertained  by  court  and  jury 
or  court  and  commissioners  in  advance  and  paid  in  ad- 
vance. But  now  state  constitutions  dispense  with  the 
special,  peculiar,  exceptive  benefit— they  dispense  with 
the  general  benefit  and  with  arch  fiendish  boldness  acts 
of  taking  and  acts  of  damaging  are  done  and  the 
wronged  citizen  is  taxed  with  the  cost  of  taking  or  dam- 
aging his  own  property,  notwithstanding  such  acts 
were  prohibited  by  the  Constitution.  If  God's  govern- 
ment be  just,  state  constitutions  with  such  moral  lep- 
rosy in  them  ought  not  and  cannot  long  endure.  Our 
constitutions  cannot  reverse  the  judgments  and  decrees 
of  the  Almighty.  There  may  be  apparent  prosperity 
but  it  is  not  real.  Our  people  in  our  cities,  towns  and 
villages  are  walking  through  the  graveyard,  whistling 
to  keep  their  courage  up.  That  which  is  taken  to  be 
healthful  life  and  vigor  is  not  real ;  it  is  the  death  rat- 
tle. It  is  an  invitation  to  a  Belshazzar's  feast  where 
sooner  or  later  will  appear  the  fatal  handwriting  on  the 
wall. 

Eestore  the  Constitution.  Make  it  possible  for  the 
honest  citizen  to  hold  and  use  his  property  in  spite  of 
anything  that  may  be  done  by  the  Empsons  and  Dud- 
leys, the  Dantons,  the  Robespierres  and  Marats  of 
modern  times. 


TABLE  OF  CASES. 


TABLE  OF  CASES. 


A. 

Allen  V.  Krennlng,  23  Mo.  App.  561   74.  75,  76,  83 

Allen  V.  Inhabitants  of  Joy,  60  Maine  127,  13.  15 

Anderson  v.  Santa  Ana,  116  U.  S.  356,  361   346 

Armstrong  v.  St.  Louis,  69   Mo.  309    77.  222 

B. 

Balrd  V.  Kansas  City,  98  Mo.  215    130.   167 

Bank  v.  Buckingham,  5  Howard  317  344 

Baltimore  &  Penn.  R.  R.  Co.  v.  Ohio  R.  R.  Co.,  60  Maryland  263  160 

Bank  of  Chicago  Union  v.  Kansas  City  Bank,  136  U.  S.  223 317 

Barber  Asphalt  Paving  Company  v.  French,  158  Mo.  534  ...  .269,  285 

Bauman  v.   Ross,   167   U.   S.   548    21 

Bay  City  v.  State  Treasurer,  23  Mich.  499   319,  320 

Bergman  v.  Backer,  157  U.  S.  655   347 

Boyd  V.  U.  S.,  116  U.  S.  616   77 

Brown  v.  Maryland.  12  Wheaton  439   179 

Bryson  v.  Rosanna  Campbell.  12  Mo.  498    331 

Bryson  v.  Bryson.  17  Mo.  590    332 

Bryson  by  next  friend  v.  Bryson,  17  Mo.  590  333 

C. 

Cameron  v.  Stephenson,  69  Mo.  372   8.  15.  65.  172 

Central  Land  Co.  v.  Laidley,  159  U.  S.  103   341.  355.  358 

Chaoney  v.  Hoover,  9  Ben  Monroe  330    15 

Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  420   160 

Chicago  Ins.  Co.  v.  Needles,  113  U.  S.  574   345 

Chicago  Union  Bank  v.  Kansas  City  Bank,  136  U.  S.  223   317 

ChrisUe  v.  Pridgen.  4  Wall.  196    315,  350 

City  of  Kansas  to  use  of  Coates  v.  Ridenour,  84  Mo.  253 

74,  244,  276,  311 

City  of  Louisiana  v.  Miller,  66  Mo.  467   58 

City  of  Pleasant  Hill  v.  Dasher,  120  Mo.  675  58.  65 

City  of  St.  Charles  v.  Nolle,  51  Mo.  122   (see  St.  Charles  v.  Nolle) 

City  of  St.  Joseph  v    Anthony.  30  Mo.  537    48.  62 

City  of  St.  .loseph  to  use  v.  Owen,  110  Mo.  445  218 

City  of  St.  Louis  v.  Davidson,  102  Mo.  149    204 

City  of  St.  Louis  to  use  of  Seibert  v.  Allen,  53  Mo.  44 

33.  53.  58.  59,  60,  63,  65.  69.  107,  135.  137.  157.  172,  180 

(377) 


378  Table  of  Cases. 

City  of  St.  Louis  v.  Clemmons  36  Mo.  467  54,  298 

City  of  St.  Louis  v.  Coons,  37  Mo.  44   54,  298 

City  of  St.  Louis  v.  Peter  Gurno,  12  Mo.  414  .  .170,  215,  238,  277,  301 

City  of  St.  Louis  v.  Rankin,  96  Mo.  497   218 

City  of  St.  Louis  v.  Hill,  116  Mo.  527   66,  76,  241,  278 

Cole  V.  LaGrange,  113  U.  S.  1    13,  15,  187,  242 

Commonwealth  v.  Pittsburg  and  Connellsville  R.  R.  Co..   58   Pa. 

St.  26   160 

Connelly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.   540    140 

Corrigan  v.  Gage,  68  Mo.  541   311 

County  Lane  v.  Oregon,   7  Wall.   71    41 

Cowenhoven  v.  City  of  Brooklyn,  38  Barb.  9  222 

Craig  V.  Missouri,  4  Peters  410   196,  198,  199 

Creamer  v.  Bates,  49  Mo.  523    311 

Creighton  v.   Manson.   27   Cal.   627    69 

D. 

Davidson  v.  New  Orleans,  96  U.  S.  97   270 

Douglass  V.  Pike  County,  101  U.  S.  677,  686   346 

Dred  Scott  v.  Sanford,  19  Howard  383   73,  290,  360 

E. 

Egyptian  Levee  Company  v.  Hardin,  27  Mo.  495 45,  48,  107,  270 

Estes  v.  Owen,  90  Mo.  113   218 

F. 

Farrar  v.   St.   Louis,  80  Mo.  379    75,  109,  218 

Fletcher  v.  Peck,   6  Cranch  87    14,  167 

Ford  V.  Kansas  City,  181  Mo.  137   295 

Fowler  v.  St.  Joseph,  37  Mo.  228    54,  298 

G. 

Garrett  v.  St.  Louis,  25  Mo.  512 27,  28,  37,  39,  48,  50,  103,  110,  218 

Gelpcke  v.  DuBuque,  1  Wall.  175  339,  346 

Gentry  et  ux.  State  ex  rel.  v.  Frey,  4  Mo.  120  (see  State  ex  rel. 

v.  Frey) 
Graves,  Mansker  et  al.  v.  The  State,  1  Mo.  452   197 

H. 

Hagar  v.  Reclamation  District,  111  U.  S.   701    43 

Halpin  v.  Campbell,  71  Mo.  493   311 

Havemeyer  v.  Iowa  County,  3  Wall.  294   340 

Head  v.  Amoskeag  Co.,   113  U.  S.  26   347 

Hilton   V.   St.   Louis,   99   Mo.    199    185 

Higgins  V.  Ausmus,  77  Mo.  351    56.  61,     65 


Tarle  of  Cases.  379 

Householder  v.  Kansas  City,  83  Mo.  488  173,  191,  191 

Hunt  V.   Knickerbocker,    5  Johns   327    201 

I. 
Isom  V.  Mississippi  Central  R.  R.  Co.,  36  Miss.  300  160 

J. 
James  River  and  Kanawha  Co.  v.  Turner,  9  Leigh.  313  .   22,  28,  133 

K. 

Kansas  City  ex  rel.  Diamond  Brick  Co.  v.   Surety  Co.,   196   Mo. 

281    203,205 

Kansas  City  v.  Ward,  134  Mo.  172 263 

Keating  v.  Skiles,  72  Mo.  97   vl 

Keating  v.  Kansas  City,  84  Mo.  415   vl 

Keith  V.  Bingham,  100  Mo.  300,  vi,  vii,  169,  178,  182,  196,  214,  288,  366 

Kilbourn  v.  Thompson,  103  U.  S.  168   309 

Knox  V.  Exchange  Bank,  12  Wall.  379  345 

L. 

Lane   County   v,    Oregon,   7   Wall     71    ♦! 

Lawler  v.  Walker,  14  Howard  149   344' 

Lehigh  Water  Co.  v.  Eastern.  121  U.  S.  388   345 

Loan  Association  v.  Topeka,  20  Wall.  655  9,  15,  36.  182,  187 

Lockwood  V.  St.  Louis.  24  Mo.  20  ..44,  69,  97,  100,  102,  110.  259, 

293,  298 
Louisiana  and  Frankford  Plankroad  Co.  v.  Pickett,  25  Mo.  535 

33,  103,  104,  106 

Louisiana  v.  Pillsbury.  105  U.  S.  278  345 

Louisville  and  Nashville  R.  R.  Co.  v.  Barber  Asphalt  Paving  Co., 

197  U.  S.  430  360 

M. 
Mansker  Graves  and  Simpson  v.  The  State  of  Missouri,  1   Mo. 

452   197 

Marbury  v.  Madison,  1  Cranch  68   302 

Marley  v.  Lake  Shore  R.  R.  Co.,  146  U.  S.  162   347 

Maynard  v.  Hill,  125  U.  S.  190  334.  336 

McCormack  v.  Patchen,  53  Mo.  33    72.  74,  107,  218 

McQuiddy  v.  Smith.  67  Mo.  App.  205  .   VT.  VH,  22.  214,  219,  279,  367 
Meachem  v.  Fitzhugh  R.  R.  Co..  4  Cush.  291    ...  .18,  21.  27,  102,  103 

Moberly  v.  Hogan,  131   Mo.  19    217,  244,  276.  311 

Mobile  and  Ohio  R.  R.  Co.  v.  Tennessee.  153  U.  S.  486 345 

Monongehala  Navigation  Co.  v.  U.  S.,  148  V.  S.  312     .  .  .65.  158,  163 
Montana  Company  v.  St.  Louis  Mining  Company.  152  U.  S.  160     138 


380  Table  of  Cases. 

N. 

Neenan  v.  Smith,  50  Mo.  525   60,  74,  123 

Newby  v.  Platte  County,  25  Mo.  258 

18,  20,  27,  33,  35,  39,  70,  102,  110,  127,  129,  150,  243,  266 

Northern  Liberties  v.  St.  John's  Church,  13  Penn.  107.  .  .12,  100,  107 

North  Missouri  R.  R.  Co.  v.  Lackland,  25  Mo.  515  127 

Norwood  V.  Baker,  172  U.  S.  269    67,  272 

O. 

Ohio  Life  Ins.  &  Trust  Co.  v.  De  Bolt,  16  How.  432  339 

Olcott  V.  Supervisors,  16  Wall.  678   346 

P. 

Pacific  R.  R.  V.  Chrystal,  25  Mo.  544   105 

Palmyra  v.  Morton,  25  Mo.  594  ...  .48,  54,  63,  65,  76,  106,  218.  293,  298 

Penn.  R.  R.  Co.  v.  Bait,  and  Ohio  R.  R.  Co.,  60  Maryland  263  160 

People  V.  Mayor  of  New  York,  4  N.  Y.  419 29,  121 

People  V.  Salem,  20  Mich.  452  319,  320 

Pleasant  Hill  v.  Dasher,  120  Mo.  675    138 

Powers  V.  Hummert,  51  Mo.  136   77,  224,  280 

Pryor  v.  Construction  Co.,  170  Mo.   439    276 

R. 

Railroad  Co.  v.   McClure,  10  Wallace   511    346,  348 

Richeson  v.  Simmons,  47  Mo.  20   333 

S. 

Sadler  v.  Roth,  59  Mo.  400  67 

St.  Charles  v.  Nolle,  51  Mo.  122   7,  8,  15.  172 

St.  Joseph  Board  of  Public  Schools  v.  Patton,  62  Mo.  444..  187,  233 

Sedalia  National  Bank  v.  Donahue,  190  Mo.  407  357 

Seibert  v.  Tiffany.  8  Mo.  App.  33   74,  218 

Sharpless  v.  Mayor,  21  Pa.  St.  147   17 

Sheehan  v.  Good  Samaritan  Hospital,   50   Mo.  155   ....69,  111,  24'4 

Shelby  v.  Guy,  11  Wheaton  367  316 

Smith  V.  Kansas  City,  128  Mo.  23  ...  .VI,  VII,  120,  155,  272,  279,  288 
St.  Louis  V.  (See.  City  of  St.  Louis) 

St.  Louis  Fair  Association  v.  Carmody,  151  Mo.  566   211 

Soulard  v.  St.  Louis,  36  Mo.  546    77,  224,  241 

Springfield  Bank  v.   Merrick,  14   Mass.  322    201 

State  of  Missouri  v.  Addington,  12  Mo.  App.  214   9,  15 

State  ex  inf.  Attorney-General  v.  People's  United  States  Bank, 

197  Mo.  605   371 

State  V.  North  and  Scott,  27  Mo.  464   45,  179,  212 

Stradlung  v.  Morgan,  Plowden  198b  at  206a  204 


Table  of  Cases.  381 

state  V.  New  Orleans  Navigation  Co.,  11  Mart.  309  107 

State  ex  rel.  v.  Leffingwell,  54  Mo.  458  Ill,  113,  122,  134.  262 

State  ex  rel.  Gentry  v.  Frey  et  al.,  4  Mo.  120   324,  327,  331 

Stewart  v.  Palmer,  74   N.   Y.   183    135,  137 

T. 

Taylor  v.  St.  Louis,  14  Mo.  20  170,  181,  215,  277,  301 

Thurston  v.  St.  Joseph,  51  Mo.  510   107 

Township  of  Pine  Grove  v.  Talcott,  19  Wall.  666  .  .317,  320,  323,  3&4 

U. 

Union  Transit  Co.  v.  Kentucky,  199  U.  S.  194   289 

W. 

Walker  v.  Sauvinett,  92  U.  S.  90    347 

Walther  v.  Warner,  25  Mo.  277  221,  223,  280,  283 

Weaver  v.  Devendorf,  3  Denio  117  161 

Wells  V.  Weston,  22  Mo.  384   2,  8,  15,  16,  36,  65,  172,  370 

White  V.  Cotzhausen,  129  U.  S.  329   317 

Williams  v.  Cammack,  27  Miss.  209   300 

Z. 
Zoeller  v.  Kellogg,  4  Mo.  App.  163  30,  67,  74,  75,  114,  116,  132.  134,  251 


INDEX. 


INDEX. 


Authority  to  tax  unrestrained  does  not  exist,  9  to  18. 

to  tax  never  existed  except  for  public  purposes.  10  to  17. 

to  tax  locally  for  doing  acts  prohibited  by  the  constitution, 
implied  by  the  courts,  217,  218,  222,  278,  280,  285,  288. 

to  tax,  restrictions  implied,  12. 

to  tax,  want  of,  9  to  18. 

abuse  of,  different,  want  of  authority  or  prohibition,  321. 

courts  have  none  to  change  interpretation  of  contracts  so  as 
to  impair  their  obligation,  315  to  358. 

Benefits  was  former  foundation  for  local  tax,  69  to  76.  122  to  125. 

was  the  former  rule  even  in  taxation  by  the  front  foot,  48  to  50, 
135  to  139,  234  to  247. 

abolished  judicially  169  to  188. 

general  benefit  formerly  rendered  the  tax  unconstitutional,  48 
to  52. 

a  judicial  question,  155  to  168. 

front  foot  rule,  the  same  tax  unconstitutional  because  it  is  only 
a  general  benefit,  is  perfectly  constitutional  if  levied  by  the 
front  foot  even  if  it  is  in  fact  a  damage,  49  to  52. 

local  tax  a  benefit  and  hence  not  exempted  under  general  laws 
of  exemption,  97  to  104. 

must  be  special,  103  to  113. 

tax  on  107  to  112,  131. 

and  burdens  compared  under  general  and  local  taxation.  114 
to  121,  215  to  225. 

no  benefit,  no  tax,  according  to  value  or  by  the  front  feet  or 
by  the  acre  or  otherwise,   135. 

damages — history  of  this  litigation,  226  to  249. 

from  general  and  local  taxation  who  shall  determine.  226  to 
249. 

changes  in  the  law,  236  to  249. 

(385) 


386  Index. 

Benefits — continued. 

comparisons  of  decisions  wherein  real  damages  in  fact  are  con- 
stitutional benefits  in  law,  250  to  259,  260  to  276. 

occupant — tenants  using  streets  or  sidewalks  even  if  benefited 
can  not  be  taxed,  293  to  299. 

owner  not  benefited  can  be  taxed  even  if  damaged.  293  to  299. 

is  a  damage,  122,  231  to  234,  291  to  294. 

to  private  property,  who  can  determine  it,  125  to  130,  155  to 
168,  366,  367. 

burden — comparison — a  general  tax  of  one  two  hundredth  of 
one  cent  is  a  burden  but  a  local  tax  sixty  thousand  times 
as  much  for  doing  an  act  prohibited  by  the  constitution  oc- 
casioning a  damage  fifty-five  million  times  the  general  tax 
is  no  burden  but  it  is  a  constitutional  benefit,  299  to  300. 

burdens — inconsistencies,  277  to  299. 

damage  of,  288. 

legislative  judgment  at  fault,  367,  368. 

Burdens — there  are  none;  all  abolished  by  legislation,  see  Benefits. 

Compensation — what  is?  This  is  a  judicial  not  legrislative  question, 
155  to  168,  284  to  290. 

legislature  can  not  fix  it,  65,  159  to  168. 

Constitution — New  York — the  language  of  the  instrument  confers  on 
cities  towns  and  villages  unlimited  powers  of  local  assess- 
ment and  taxation  and  creating  debts,  121  to  134. 

New  York — authorizes  municipalities  to  create  debts,  borrow 
money,  make  assessments,  lend  their  credit,  tax  all  prop- 
erty without  any  limit  or  restriction,  except  as  imposed  by 
the  legislature,  121  to  134,  233  to  391,  322,  333. 

state  history,  226  to  259. 

generally  demands  judicial  inquiry  as  to  benefits,  the  fact  and 
amount  of  benefit  and  damage  and  value,  125  to  130. 

what  may  happen  determines  constitutional  validity  of  law, 
135  to  142. 

judicial  construction  a  part  of  it,  315  to  359. 

statutes — judicial  twisting  to  support  or  overthrow  them,  48,  141 
to  154,  199  to  210. 

restrictions  ought  to  be  liberally  construed,  82,  83. 

shall  it  be  enforced?  302  to  308. 


Index.  387 

Constitution — Continued. 

statutes — judicial   interpretations   become   part  as   if   incorpor- 
ated into  the  body  of  it,  315  to  359. 

intent  on  the  part  of  le^slature  not  to  violate  the  constitution 
will  not  save  the  act,  212. 

Contract  to  violate  the  law  enforced  in  the  court's  case  in  point, 

203  to  214. 
to  violate  state  constitution  enforced  in  the  courts.  214  to  225. 
legislative  power  over,  315. 
for  public  work   payable   in  tax-bills  can  not  be  impaired   by 

state  legislation.  315  to  358. 
their  obligation  may  be  impaired  by  congress  or  a  territorial 

legislature,  333  to  336. 
marriage — state  legislature  divorce  impairs  its  obligation,  324 

to  336. 
obligation  statute  impairment.  337  to  358,  364,  365. 

Courts — can  they  be  trusted  by  the  "business  man?",  358. 
distrusted  reasons  therefor,  315  to  358. 

"Damnum   absque   injuria" — This   is   a   d d   benefit  now   by   act 

of  the  state  legislatures,  215  to  225. 

Damages  for  violation  of  the  constitution  ought  to  be  trebbled  to 
secure  respect,  367,  368. 

legislature  can  not  determine  the  fact  or  amount,  125  to  130, 
162  to  168.  284  to  290,  366.  367. 

benefits,  291  to  314. 

of  a  benefit,  288. 

to  private  property  who  can  determine  125  to  130,  155  to  168, 

366,  367. 
there  are  none;  all  forbidden  by  the  constitution,  see  Benefits. 

Debt — action  of,  was  former  method  to  recover  local  taxes,  62  to  67. 

Exemptions — Statute  exemptions  from  taxation  generally  refer  to 
general  taxes  and  state  and  county  taxes  that  are  burdens 
not  to  local  taxes  which  are  a  benefit  to  the  property  taxed, 
97  to  102,  298,  299. 

these  are  mostly  exemptions  from  benefits,  1  to  373. 
Inconsistencies,  277  to  299. 

Interpretation  of  statutes  and  constitutions  are  a  part  of  them  the 
same  as  if  incorporated  in  them.  315  to  359. 


388  Index. 

Intent  on  the  part  of  the  legislature  not  to  violate  the  constitution 
will  not  save  the  act,  212. 

Judicial  questions,  284  to  290. 

Legislature — if  the  legislature  of  Iowa  and  West  Virginia  did  just 
what  their  supreme  courts  say  they  did,  then  the  legisla- 
tive acts,  not  the  judicial  decisions,  impaired  the  obligations 
of  contracts,  the  Iowa  bonds  and  the  Huntington  deed,  337 
to  358. 

intent  on  the  part  of  the  legislature  not  to  violate  the  constitu- 
tion will  not  save  the  act,  212. 

their  tendencies  to  disregard  constitutional  restrictions,  324  to 
336,  359. 

questions  not  legislative,  284  to  289. 

its  powers — municipal  bonds  and  tax-bills  compared,  337,  338. 

its  powers — how  determined — if  the  supreme  court  of  the 
United  States  may  disregard  the  final  decisions  of  the  high- 
est judicial  tribunal  in  the  state  they  may  disregard  the 
constitution  and  the  statute,  354. 

its  power  to  determine  benefits,  74  to  78. 
See,  also,  Benefits  and  Damages. 

discretion — how  much  shall  the  courts  allow?,  176  to  179. 

Parliament — its  powers  compared  with  the  powers  of  state  legisla- 
tures, 308  to  314. 

Restrictions — expressed  in  constitutions  should  be  liberally  con- 
strued in  the  interest  of  the  person  and  property  to  be  pro- 
tected, 76  to  83. 

implied  in  general  taxation,  2,  7,  8,  9,  12  to  15,  17. 

implied  in  local  taxation,  18  to  25,  27,  28,  46  to  49. 

apply  to  all  departments  of  the  government  alike  not  to  cases 
of  "Eminent  Domain"  alone,  65  to  67,  131  to  134. 

of  Missouri  constitution  of  1875,  86  to  92. 

former  now  judicially  abolished,  179  to  200. 

constitutional,  self  enforcing,  187  to  203. 

condemnation  for  public  use  fails  if  benefits  to  public  added 
to  benefits  to  the  property  not  taken  are  less  than  the  value 
of  land  taken  and  damage  to  that  not  taken,  30  to  41. 

constitutional— "all  property  shall  be  taxed  in  proportion  to  its 
value"  does  not  require  all  property  to  be  taxed,  44,  45. 


Index.  389 

Restrictions — Continued. 

owner  can  not  be  made  personally  liable,  53  to  61. 

owner  was  formerly  personally  liable,  62  to  65. 

none  to  tax  for  doing  acts  prohibited  by  the  constitution,  359 
to  372. 

none  on  the  Parliament  of  England,  301  to  311. 

The  general  rule  in  the  United  States — 100  per  cent  of  the 
value  of  the  land,  100  per  cent  of  the  value  of  the  houses 
and  improvements  on  land  may  be  taken  as  local  tax  for 
doing  public  work  which  is  a  damage,  313-14. 

constitutional  legislative  disregard  of  them,  324  to  365. 

constitutional  ought  to  apply  to  local  taxes,  369. 

one  instance  where  the  property  owner  was  not  bound  to  pay 
for  damaging  his  own  property,  371,  372. 

constitutional — ought  to  be  restored,  372,  373. 

constitutional — ought  to  be  liberally  construed,  82,  83. 

constitutional — necessity  for  case  in  point,  300. 

constitutional — we  disregard  them  and  follow  Parliament  302 
to  314. 

Slavery — municipal  bonds — special  tax-bills  all  enforced  alike  not- 
withstanding the  constitution,  359  to  373. 

Taxation  not  governed  by  the  constitution,  2. 

may  be  a  taking,  4  to  7,  40  to  42,  169  to  175,  179  to  182. 

a  taking — cases  in  point,  4  to  18,  48  to  61,  65  to  67. 

in  connection  with  eminent  domain,  18  to  44,  169  to  175. 

twisting  of  constitutions  and   statutes,   48,  143   to  154,   199   to 

210. 
personal  liability  makes  local  taxation  a  taking,  48  to  61. 

discretion  of  the  legislature — how  much  discretion  shall  the 
courts  allow  to  the  legislature?,  176  to  179. 

local — valid  even  for  an  act  entirely  destroying  the  property, 
276. 

Taxes  may  be  made  payable  in  commodities  or  in  land,  43,  44. 
Value  a  judicial  question,  125  to  131,  155  to  164. 


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